Petition for Writ of Certiorari — Thomas Steven Sanders, Petitioner v. United States

Supreme Court briefDec 22, 2025

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No. 25-_______

IN THE

Supreme Court of the United States

THOMAS STEVEN SANDERS,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

APPENDIX

JON M. SANDS

Federal Public Defender

SARAH S. GANNETT

Assistant Federal Public Defender

Counsel of Record

250 North 7th Avenue, Suite 600

Phoenix, Arizona 85007

(602) 382-2700 voice

sarah_gannett@fd.org

Counsel for Petitioner

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Date Filed: 03/27/2025

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

FILED

March 27, 2025

No. 15-31114

Lyle W. Cayce

Clerk

United States of America,

Plaintiff—Appellee,

versus

Thomas Steven Sanders,

Defendant—Appellant.

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 1:10-CR-351-1

Before Richman, Southwick, and Oldham, Circuit Judges.

Priscilla Richman, Circuit Judge:

Thomas Steven Sanders was convicted of kidnapping and murdering

a twelve-year-old child and received two concurrent sentences of death. In

this direct criminal appeal, Sanders brings numerous challenges to his

convictions and sentences. On December 23, 2024, then-President Biden

commuted Sanders’s sentences to two terms of life imprisonment without

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the possibility of parole. 1 That action did not necessarily moot the issues

Sanders has raised in his appeal. We now vacate Sanders’s conviction and

sentence under Count Two of his indictment, which was based on 18 U.S.C.

§ 924(c) and (j), and we otherwise affirm the district court’s judgment.

In 2010, Suellen Roberts and her twelve-year-old daughter, L.R.,

moved in with Suellen’s mother, who lived in a one-bedroom apartment in

Las Vegas. 2 Suellen rented a storage unit at Pacific Mini-Storage to store

some of her belongings. 3 Sanders worked and lived at the Pacific MiniStorage facility, and it was there that Suellen met Sanders. 4 During the

summer of 2010, Suellen visited the storage facility two or three times a

week. 5 Sanders and Suellen began dating and would often go out together. 6

Late that summer, the two started planning a Labor Day weekend trip to

Arizona with L.R. 7 Shortly before the trip, Sanders purchased ammunition

See Commutations Granted by President Jospeh Biden (2021-2025), Off. of the

Pardon Att’y (Feb. 21, 2025), https://www.justice.gov/pardon/commutationsgranted-president-joseph-biden-2021-present [https://perma.cc/2EJ5-59T3] (last visited

Mar. 27, 2025); FACT SHEET: President Biden Commutes the Sentences of 37 Individuals on

Death Row, The White House (Dec. 23, 2024), https://bidenwhitehouse.archives.gov

/briefing-room/statements-releases/2024/12/23/fact-sheet-president-biden-commutesthe-sentences-of-37-individuals-on-death-row/ [https://perma.cc/9UJN-VDDS] (last

visited Mar. 27, 2025).

ROA.2249, 2253.

ROA.2253-54.

ROA.2255-56, 2284-85.

ROA.2256-57.

ROA.2257, 3192.

ROA.2259-60, 2264.

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for a .22 caliber rifle. 8 The three left Las Vegas in Suellen’s vehicle and

visited various attractions in Arizona over the Labor Day weekend. 9 On

Monday, they began their trip home to Las Vegas. 10

In response to

questioning, Sanders provided the following account. En route, they were

driving “down the road and found a place to go shooting the gun.” 11 Suellen

was “learn[ing] how to shoot his .22” rifle. 12 After Sanders and Suellen had

been shooting the rifle, Sanders fatally shot Suellen in the head at close range

and left her body where they had been shooting. 13 There is no evidence of an

argument or altercation prior to the shooting. 14 L.R. witnessed Sanders shoot

her mother and “was in hysterics.” 15 Sanders then drove with L.R. for three

or four days to Louisiana. 16 Sanders stopped in a remote area that was not far

from his childhood home, 17 and he fatally shot L.R. four times in the head and

chest before slitting her throat. 18 Sanders left L.R.’s body in the woods. The

ROA.2278-82, 2290-91.

ROA.2264-65.

ROA.5657.

ROA.2143.

ROA.5659.

ROA.2143-44, 2179.

ROA.2144.

ROA.2144, 2780-81.

ROA.2144.

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record reflects that approximately a month later, hunters discovered L.R.’s

remains. 19

In the meantime, Suellen’s family notified authorities that Suellen and

L.R. were missing after they did not return home to Las Vegas. 20

Subsequently, on November 14, 2010, the authorities apprehended

Sanders, 21 and he confessed to killing both Suellen and L.R. 22

Sanders was prosecuted by federal authorities under federal law. In

2014, after a four-day trial in the Western District of Louisiana, a jury

convicted Sanders of kidnapping and murdering twelve-year-old L.R. 23 After

a seven-day penalty phase trial, the jury determined “by unanimous vote that

a sentence of death shall be imposed” on both counts. 24 Pursuant to the

jury’s verdict, the district court imposed two concurrent death sentences. 25

This direct appeal follows in which Sanders presents several issues.

Sanders first argues that the district court erred by failing to order a

hearing sua sponte to determine whether he was competent to stand trial.26

ROA.2035-36.

ROA.2269.

ROA.2151.

ROA.2143.

ROA.1386.

ROA.3466-67.

ROA.3471.

Sanders Br. at 33.

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“An abuse of discretion standard applies to the district court’s failure to sua

sponte conduct a mental competency hearing.” 27

Pursuant to 18 U.S.C. § 4241(a), a district court shall order a

competency hearing “if there is reasonable cause to believe that the

defendant may presently be suffering from a mental disease or defect

rendering him mentally incompetent to the extent that he is unable to

understand the nature and consequences of the proceedings against him or

to assist properly in his defense.” 28 “There is no specific threshold or

‘quantum of evidence’ that requires the district court to order a competency

hearing.” 29 To determine whether the district court should have ordered a

hearing, we consider the following factors: “(1) the existence of a history of

irrational behavior, (2) the defendant’s demeanor at trial, and (3) prior

medical opinion on competency.” 30

In arguing that he had a history of irrational behavior, Sanders relies

heavily on the fact that defense counsel made an ex parte proffer before the

district court prior to the commencement of opening statements. During this

proffer, counsel stated that they had “always been able to maintain a

semblance of competency with our client. However, recently with voir dire

and the stresses of trial, he is decompensating.” 31 Significantly, during this

proffer, counsel did not provide the court any examples of Sanders’s

statements or behavior that led counsel to believe that Sanders might be

United States v. Flores-Martinez, 677 F.3d 699, 706 (5th Cir. 2012) (italics

omitted).

18 U.S.C. § 4241(a).

United States v. Mitchell, 709 F.3d 436, 440 (5th Cir. 2013) (quoting Davis v.

Alabama, 545 F.2d 460, 464 (5th Cir. 1977)).

Id. (quoting United States v. Ruston, 565 F.3d 892, 902 (5th Cir. 2009)).

ROA.5550 (italics omitted).

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incompetent to stand trial. 32 Counsel then informed the court that “if those

concerns grow even further, we’ll certainly alert the court again.” 33

Additionally, counsel stated to the court that their expert anticipated that

Sanders’s condition would worsen during trial. 34 After that proffer, counsel

did not bring to the court’s attention any further concerns regarding

Sanders’s competency. 35

Sanders also relies on evidence introduced at trial that he suffered

from mental illnesses and brain damage. This court has explained that “‘the

presence or absence of mental illness or brain disorder is not dispositive’ as

to competency.” 36 Put another way, a “defendant can be both mentally ill

and competent to stand trial.” 37 In responding to a verdict form submitted

during the penalty phase, the jury unanimously found, by a preponderance of

the evidence, that Sanders had brain damage but also unanimously failed to

find that he suffered from mental illness. 38

Nonetheless, Sanders’s

psychiatrist, Dr. Stewart, testified that he diagnosed Sanders with

Cf. United States v. Williams, 998 F.2d 258, 266 (5th Cir. 1993) (citing Lewellyng

v. United States, 320 F.2d 104 (5th Cir. 1963)) (explaining that the “allegations were

factually specific, and suggested reason to believe that the defendant might be seriously

mentally compromised”).

ROA.5551.

ROA.5550.

Cf. Medina v. California, 505 U.S. 437, 450 (1992) (stating that “defense counsel

will often have the best-informed view of the defendant’s ability to participate in his

defense”).

United States v. Mitchell, 709 F.3d 436, 440 (5th Cir. 2013) (quoting Mata v.

Johnson, 210 F.3d 324, 329 n.2 (5th Cir. 2000)).

Mays v. Stephens, 757 F.3d 211, 216 (5th Cir. 2014).

ROA.1616.

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schizoaffective disorder, with a qualifier of bipolar type. 39 Dr. Stewart also

testified that Sanders had delusions of being visited by dead people and

communicating telepathically; 40 however, the jury unanimously found that

Sanders did not experience delusions or hear “voices that others do not.” 41

Sanders claims a long history of irrational behavior based on his living in

disorder in a storage facility, poor hygiene, and substance abuse. 42 We note

there was no evidence of substance abuse at the time of trial. Indeed, during

his interrogation, Sanders told the officers that he had not “taken any kind of

drugs for six months prior” to killing L.R. 43 Our analysis in United States v.

Mitchell 44 suggests that these behaviors, standing alone, do not constitute

reasonable cause to believe Sanders may have been incompetent. 45 In that

case, we concluded that the district court did not abuse its discretion by

failing to conduct a competency hearing despite the fact that the defendant

had been in and out of mental health facilities; had made “illogical and

rambling statements” during the proceeding at issue; had been diagnosed

with schizophrenic disorder, bipolar type with psychotic features; and had

earlier been found not guilty of murder by reason of insanity. 46 Sanders

points out that in Mitchell, unlike the instant case, the defendant’s testimony

demonstrated his awareness and understanding of the proceedings.47

ROA.3030.

ROA.3015.

ROA.1616.

Sanders Br. at 42; Sanders Reply Br. at 4.

ROA.1684.

709 F.3d 436 (5th Cir. 2013).

Id. at 440-41.

Id. at 438-39, 441.

Sanders Reply Br. at 5 (citing Mitchell, 709 F.3d at 441).

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Although Sanders did not testify, as explained more fully below, we are

unpersuaded that this factor, by itself, demonstrates that the district court

abused its discretion when it did not conduct a competency hearing.

With respect to the second factor—Sanders’s demeanor at trial—

there is no record evidence of any outbursts or inappropriate behavior at trial

that would suggest Sanders was incompetent. The district court was able to

observe Sanders’s demeanor in court during jury selection, the

guilt/innocence phase of trial, and the penalty phase, all of which occurred

over a period of nineteen days. This factor weighs in favor of the district

court’s decision.

The third factor is prior medical opinions on competency. Sanders’s

counsel did not request that Sanders be evaluated specifically for competency

to stand trial. However, Sanders was examined by four experts: the defense’s

psychiatrist and neuropsychologist and the government’s psychiatrist and

neuropsychologist. Although the government and defense experts agreed

that Sanders had brain damage (but did not agree as to the severity of the

damage), no expert opined that Sanders was incompetent to stand trial. 48

The government’s psychiatrist, Dr. Thompson, testified that Sanders

appeared “pretty competent to me and able to tell me the story that he

related.” 49 Dr. Thompson also testified that when he observed Sanders in

the courtroom, Sanders appeared to be listening to the proceedings and

occasionally speaking to his lawyer at times when it was important. 50

Accordingly, this factor weighs in favor of the district court’s decision.

See Oral Argument at 5:57-6:09,

OralArgRecordings/15/15-31114_3-2-2020.mp3.

ROA.3322.

https://www.ca5.uscourts.gov/

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We have explained that the “trial court is in the best position to decide

whether a competency hearing is necessary.” 51

Moreover, “[w]hether

reasonable cause exist[ed] to put the court on notice that the defendant might

be mentally incompetent is left to the sound discretion of the district

court.” 52 Here, counsel represented to the court during the pre-trial proffer

that they would inform the court if they had further concerns about Sanders’s

competency. No further concerns were relayed to the court, and the district

court was able to observe Sanders for nineteen days. None of the four experts

who examined Sanders testified that it was their opinion that he was

incompetent to stand trial, and one of those experts opined that he seemed

competent.

After considering the evidence and the three factors, we

conclude that the district court did not abuse its sound discretion when it did

not sua sponte order a competency hearing.

III

Sanders contends that the district court erred in denying his motion

to suppress the statements that he made during custodial interrogation

following his arrest. He argues that the law enforcement officers should have

stopped questioning him when he invoked his right to counsel. 53 Sanders’s

briefing seems to focus on the penalty phase of his trial to the exclusion of the

guilt/innocence phase. The commutation of his death sentences would seem

to moot his complaints about the admission of the evidence that is in

contention. But, out of an abundance of caution, because he did not clearly

forfeit or affirmatively waive the applicability of his arguments to his

Mitchell, 709 F.3d at 440.

Id. (alteration in original) (quoting United States v. Davis, 61 F.3d 291, 304 (5th

Cir. 1995)).

Sanders Br. at 56.

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convictions, as opposed to his sentences, and because he affirmatively seeks

to have his convictions reversed, we proceed to address the denial of his

motion to suppress. In evaluating the denial of that motion, we review the

district court’s legal conclusions de novo and its factual findings for clear

error. 54 “We view the evidence in the light most favorable to the party that

prevailed below.” 55

On the day Sanders was apprehended at a truck stop, law enforcement

officers questioned him three separate times.

The first time, he was

questioned immediately after he was arrested when he was placed in a parked

FBI vehicle. 56 The second time, he was questioned at the FBI office after

he was processed. 57 The third time, he was questioned at a correctional

facility. 58 It is undisputed that the officers advised Sanders of his rights and

that he signed a form waiving those rights. 59 It is also undisputed that during

the first and third interviews, Sanders stated that he wanted to speak to an

attorney. The parties dispute whether the invocations of counsel were

limited or ambiguous.

“If the suspect effectively waives his right to counsel after receiving

the Miranda warnings, law enforcement officers are free to question him.” 60

However, “if the accused indicates in any manner that he wishes to remain

silent or to consult an attorney, interrogation must cease, and any statement

United States v. Cavazos, 288 F.3d 706, 709 (5th Cir. 2002).

United States v. Pack, 612 F.3d 341, 347 (5th Cir. 2010).

ROA.1676.

ROA.1710-11.

ROA.1737-38.

Sanders Br. at 59.

Davis v. United States, 512 U.S. 452, 458 (1994).

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obtained from him during interrogation thereafter may not be admitted

against him at his trial.” 61 The question of whether a suspect has in fact

invoked his right to counsel is an objective inquiry. 62 A suspect “must

articulate his desire to have counsel present sufficiently clearly that a

reasonable police officer in the circumstances would understand the

statement to be a request for an attorney.” 63 “[I]f a suspect makes a

reference to an attorney that is ambiguous or equivocal in that a reasonable

officer in light of the circumstances would have understood only that the

suspect might be invoking the right to counsel, [Supreme Court] precedents

do not require the cessation of questioning.” 64 Further, if a suspect clearly

invokes his rights as to certain topics, the officer must honor the request by

changing the subject. 65

Sanders filed a pretrial motion to suppress all his statements except for

his admission that “I killed her [Suellen Roberts], I killed them both.” 66 The

magistrate judge conducted an evidentiary hearing on the motion to suppress

all other statements in the three interviews. 67 At the hearing, FBI Special

Agent Glen Kelly testified that he questioned Sanders in the FBI vehicle. 68

This first interview in the vehicle was not recorded. After Kelly asked

Sanders for Suellen’s location, Sanders replied that she was dead and that he

Fare v. Michael C., 442 U.S. 707, 709 (1979).

Davis, 512 U.S. at 459.

Id.

See United States v. Ivy, 929 F.2d 147, 152-53 (5th Cir. 1991).

Sanders Br. at 56.

ROA.1668.

ROA.1676.

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had killed both Suellen and L.R. 69 When Kelly asked Sanders why he killed

Suellen, Sanders replied that “he wanted to speak to an attorney before

answering that question.” 70 Kelly testified that he changed the subject and

did not repeat the question. 71 Sanders said that on Labor Day weekend, he,

Suellen, and L.R. were returning from an amusement park in Arizona and

driving on Interstate 20. 72 Sanders drove to a remote area off the highway so

they could shoot his .22 rifle. 73 Sanders admitted shooting Suellen once in

the head and leaving her body there. 74 He said L.R. witnessed him shooting

her mother. 75 Sanders drove L.R. on a several-day trip to Louisiana. 76

Sanders denied abusing or raping L.R. 77 When Kelly asked Sanders why he

killed L.R., Sanders stated that he wanted to speak to an attorney “before

answering that question.” 78 Because that was the second time that Sanders

had stated he wanted a lawyer before answering a particular question, Kelly

asked Sanders if he was “willing to answer all these other questions,” and

Sanders responded affirmatively. 79 Kelly then changed the subject and did

not again ask why Sanders had killed L.R. 80 Additionally, when Kelly asked

ROA.1682.

ROA.1683.

ROA.1684.

ROA.1685.

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Sanders what he did in Las Vegas, Sanders stated that he wanted to speak to

a lawyer before answering that question. 81

Kelly did not repeat that

question. 82 Kelly ended the interview by asking Sanders if he had ever killed

anyone else, and Sanders replied that he had not. 83 Sanders was then

transported to the FBI office to be processed into the system. 84

The next witness to testify at the suppression hearing was Ron Werby,

a criminal investigator with the Sheriff’s Department in Gulfport,

Mississippi, who had been assigned to the FBI Joint Task Force for several

years. 85 Werby testified that he was in the FBI vehicle while Kelly was

interviewing Sanders. 86 Werby testified that Kelly told Sanders: “[I]f you

want an attorney, you don’t want to talk anymore, we’ll stop the conversation

right now.” 87 Sanders responded: “No, I’ll answer your questions. I just

want to talk to an attorney about answering this one question as to why I killed

[L.R.]” 88 Toward the end of Kelly’s interview, Werby asked Sanders where

Suellen’s body was located. 89 Sanders replied that it was off “Interstate 20

ROA.1685-86.

ROA.1686.

ROA.1702.

ROA.1707.

ROA.1729.

ROA.1708.

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and about 20 miles to the west of Williams, Arizona.” 90 Sanders did not

recall the exit on Interstate 20. 91

Once the interview in the vehicle concluded, FBI Special Agent Steve

Callender drove Sanders and Werby to the FBI office. 92 While the agents

processed Sanders, Werby opened a map on the computer that showed

Williams, Arizona, and the surrounding area. 93 This second interview at the

FBI office was not recorded. Werby testified that Sanders “was very

interested in trying to help us find the body.” 94 After Sanders was processed,

he sat down at Werby’s computer, and Werby asked Sanders if he understood

his rights. 95 Sanders responded affirmatively. 96 Werby testified that Sanders

“was very willing” to look at the map and help locate Suellen’s body. 97

Sanders told Werby that the intersection off the interstate had a pile of

asphalt. 98 To help them in locating Suellen’s body, Werby called Special

Agent Jamie Newton, who worked in Flagstaff, Arizona. 99 Both Werby and

Sanders talked to Agent Newton. At one point, Sanders asked Werby about

L.R.’s body. 100 Werby described the condition of L.R.’s remains, and

ROA.1708.

ROA.1709.

ROA.1710.

ROA.1712.

ROA.1713.

100

ROA.1715-16.

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Sanders became “very upset and started crying.” 101 Sanders said that “she

didn’t deserve that.” 102 Sanders told Werby that L.R. became hysterical

after he killed her mother. 103 Sanders also told Werby that the gun he used

to kill them “was a piece of junk” and that he had to put a bullet in the gun’s

chamber every time he fired it. 104 Werby testified that they were unable to

find the exact exit on the interstate. 105 Werby also testified that Sanders

never requested to speak to an attorney while they were at the FBI office. 106

Sanders was later transported to a correctional facility. 107

The next witness at the hearing was Louisiana State Trooper William

Moore, who had been assigned to an FBI Task Force to investigate violent

crimes. 108 Moore testified that FBI Special Agent Ben Walsh called and

informed him that Sanders had been arrested. 109 Moore and Walsh drove to

a correctional facility in Mississippi to interview Sanders. 110 Moore had been

in communication with the Gulfport FBI agents and learned that Sanders

had been cooperative during his interview earlier that morning and had

confessed to the murders. 111 Moore testified that the purpose of their

101

ROA.1716.

102

ROA.1716.

103

ROA.1716.

104

ROA.1717.

105

ROA.1715.

106

ROA.1725.

107

ROA.1717.

108

ROA.1735.

109

ROA.1735-36.

110

ROA.1736.

111

ROA.1736-37.

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interview with Sanders was to locate Suellen’s body. 112 Prior to interviewing

Sanders, Moore testified that they advised him of his rights with a form. 113

Although Moore was aware that Sanders had waived his rights before the

previous interview, they wanted to make sure Sanders understood his rights.

Sanders acknowledged that he understood his rights and that he waived

them. 114 The form provided that Sanders had a right to stop the questioning

and the right to talk to a lawyer before any questioning. 115 Sanders signed the

waiver form, with Moore and Walsh as witnesses. 116 Sanders agreed to talk

with Moore and Walsh and did not indicate any reservations in doing so. 117

Moore testified that Sanders was coherent and cooperative. 118 Unlike the

previous two interviews, this interview was recorded, and Sanders was aware

of the recording. 119

The interview lasted about an hour and five minutes, and the “first

three-quarters of the time” involved Sanders relaying information over the

telephone to agents in Arizona in an attempt to locate Suellen’s body. 120

Moore testified that they used a computer to view maps, and Walsh used

112

ROA.1738.

113

ROA.1738-39.

114

ROA.1739.

115

ROA.1741.

116

ROA.1740.

117

ROA.1741.

118

ROA.1743.

119

ROA.1743-44.

120

ROA.1748.

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Google Maps on his cell phone. 121 Sanders drew a picture of the area around

the interstate exit to assist in finding it. 122

At around the forty-eight-minute mark of the recording, the phone call

with the Arizona agents was terminated. 123

Moore and Walsh began

questioning Sanders about the events that occurred over Labor Day

weekend. 124 Walsh then asked Sanders about his employment at a mattress

factory, and Sanders responded that he wanted to speak to an attorney. 125 As

a result, Walsh changed the subject of the interview. 126 At that point in

Moore’s testimony during the suppression hearing, defense counsel objected

to any more questions regarding the interview, asserting that the transcript

was the best evidence of the interview. 127 The magistrate judge agreed and

played the recorded interview in open court. 128 A transcript of the recorded

interview was also admitted into evidence under seal. 129

The

magistrate

judge

subsequently

issued

report

and

recommendation denying the motion to suppress the statements. 130 With

respect to the first interview conducted by Agent Kelly, the magistrate judge

found that Sanders asked for an attorney before he would answer three

121

ROA.1749.

122

ROA.1750.

123

ROA.1753.

124

ROA.1753.

125

ROA.1754.

126

ROA.1754.

127

ROA.1754.

128

ROA.1754-55.

129

ROA.1746.

130

ROA.198-206.

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“specific questions: 1) why he killed Suellen, 2) why he killed [L.R.], 3) what

he had been doing while in Nevada.” 131 The magistrate judge further found

that each time that Sanders requested to talk to an attorney before answering

a particular question, Kelly honored his request by changing the subject. 132

The magistrate judge expressly rejected Sanders’s assertion that the agent

used the guise of clarification to persuade Sanders to continue to waive his

rights. 133 The magistrate judge found that “Agent Kelly was bending over

backwards to protect Sanders’s rights and to be absolutely sure that Sanders

wanted to continue talking about other things.” 134 Moreover, the magistrate

judge found that these “facts were corroborated by Investigator Werby.” 135

The magistrate judge concluded as follows:

Therefore, I find, by a preponderance of the evidence, that

each statement by Sanders that he wished to speak with a

lawyer before answering that particular question was

unambiguously directed to those particular questions only and

that Sanders was not requesting an attorney before continuing

with the interview. Sanders was very clear and specific in

indicating what areas of the interview he would and would not

discuss without a lawyer and there is no question in my mind

that his actions and choices were knowing and voluntary. 136

131

ROA.204.

132

ROA.204.

133

ROA.205.

134

ROA.205.

135

ROA.205.

136

ROA.205.

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The district court determined that the findings in the magistrate judge’s

report were correct and denied the motion to suppress. 137

As an initial matter, Sanders argues that because the first interview

was not recorded, we should assess Kelly’s and Werby’s testimony in light

of the subsequent recorded interview. 138 Although pre-invocation conduct is

a relevant consideration when evaluating whether an invocation was clear and

unambiguous, 139 we are not persuaded that a subsequent interview conducted

by different law enforcement officers is relevant. The magistrate judge “was

in the best position to weigh the credibility of the testimony” of Kelly and

Werby. 140 Accordingly, we “will not second guess the district court’s factual

findings as to the credibility of witnesses.” 141

With respect to the first interview, Sanders has failed to demonstrate

that the court’s factual findings are clearly erroneous. “A district court’s

denial of a motion to suppress should be upheld ‘if there is any reasonable

view of the evidence to support it.’” 142 As previously set forth, the district

court found that each time that Sanders requested to talk to an attorney

before answering a particular question, Agent Kelly honored his request by

changing the subject. This court has previously affirmed the denial of a

defendant’s motion to suppress in a similar situation. In United States v.

137

ROA.228.

138

Sanders Br. at 59.

139

Smith v. Illinois, 469 U.S. 91, 98 (1984).

140

United States v. Garza, 118 F.3d 278, 283 (5th Cir. 1997).

141

Id.

142

United States v. Sarli, 913 F.3d 491, 495 (5th Cir 2019) (quoting United States v.

Michelletti, 13 F.3d 838, 841 (5th Cir. 1994) (en banc)).

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Ivy, 143 the district court denied a suppression motion, finding that the

defendant “was not asking for an attorney but was choosing at that time not

to talk about a particular area of inquiry until he talked to an attorney.” 144 We

noted that after the defendant “expressed his unwillingness to answer

questions about where he obtained materials to make a bomb,” the police

officer “honored this request by moving to a different subject.” 145 We held

that the district court’s interpretation of the defendant’s statement was not

clearly erroneous. 146

Similarly, in this case, both Kelly and Werby testified that Sanders’s

invocations of counsel were qualified. When Kelly asked Sanders why he

killed Suellen, Sanders stated that “he wanted to speak to an attorney before

answering that question.” 147 Sanders answered similarly when he was later

asked why he killed L.R. and again when asked about his experiences in

Nevada before the killings. 148 Each time, Kelly stopped questioning Sanders

about these topics and instead began inquiring into a new topic. 149 In light of

this evidence, the district court did not clearly err when it concluded that

Sanders’s invocations of counsel during his first interrogation were limited

to certain topics. Accordingly, all the statements Sanders made during his

first interview were admissible. Also, because Sanders did not make any

143

929 F.2d 147 (5th Cir. 1991).

144

Id. at 152.

145

Id. at 153.

146

Id.

147

ROA.1682 (emphasis added).

148

ROA.1684-86, 1725.

149

ROA.1682, 1684-86, 1725-30.

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requests for counsel during the second interview at the FBI office, his

statements made during that interview were admissible as well.

We now turn to the third interrogation, which was the recorded

interview conducted by Agent Walsh and Trooper Moore at a correctional

facility. 150 The first forty-eight minutes were spent obtaining information

from Sanders regarding where Suellen’s body was located. 151 After that,

Walsh and Moore began asking Sanders about his relationship with

Suellen. 152

The interview transcript demonstrates that Sanders was

cooperating and answering those questions. 153 Walsh then asked Sanders if

he had worked for a mattress company. 154 In response, Sanders stated, “Um,

I want to talk to a lawyer. Stop cussing me, but I want to talk to a lawyer.” 155

Walsh then asked: “About what?” 156 Sanders responded: “Before I answer

that question or anything to do with other people.” 157 Walsh replied that they

would stop asking those questions. 158 Walsh then immediately asked Sanders

if he would “still continue answering questions.” 159 Sanders responded that

he would “answer questions as long as you’re not talking about other

people.” 160 Walsh then asked if it was okay to ask questions about Suellen

150

ROA.5614.

151

ROA.1753, 1760.

152

ROA.5646.

153

ROA.5646-47.

154

ROA.5648.

155

ROA.5648. The transcript of the interview does not reveal any cursing.

156

ROA.5648.

157

ROA.5648.

158

ROA.5648.

159

ROA.5648.

160

ROA.5648.

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and L.R. 161 Sanders agreed, stating: “That’s them, you stay in that area,

that’s fine.” 162

The interview continued with Sanders responding to

questions about the trip to Arizona and the murder of Suellen. 163 Sanders

denied having an argument or altercation prior to shooting Suellen. 164 After

Sanders confessed to shooting Suellen, Walsh asked him what happened

next. 165 Sanders replied: “I made [L.R.] get in the car and we left. Pulled her

over up beside her in the car and we got into the car and we left. I need to

talk to a lawyer, that’s as far as I’m . . . we just um, we just left and we drove.

I didn’t know what to do.” 166 Sanders continued: “Um, I shot both of ‘em,

killed both of them, but the bottom line is what I’ll tell you and other than

that I need to talk to a lawyer on the other answers and stuff, I need questions

answered. Okay?” 167 Walsh replied: “Okay . . . that’s[] fair . . . I don’t want

to make you do something that you don’t want to do.” 168 Sanders then asked

if either state had the death penalty, and Walsh replied that he did not know

the answer. 169 Sanders reiterated that he needed to talk to a lawyer, and

Walsh terminated the interview. 170

161

ROA.5648.

162

ROA.5648.

163

ROA.5648-59.

164

ROA.5659.

165

ROA.5659.

166

ROA.5659.

167

ROA.5659.

168

ROA.5659.

169

ROA.5659.

170

ROA.5660.

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In the report and recommendation, the magistrate judge found

Sanders’s first invocation of counsel during the third interview was only with

respect to the question whether he had worked for a mattress company. 171

Unlike the first interview, however, Sanders did not limit his invocation to a

particular question. In the first interview, Sanders stated that “he wanted to

speak to an attorney before answering that question.” 172 Here, after Sanders

stated that he wanted to talk to an attorney, Walsh asked: “About what?” 173

Sanders responded: “Before I answer that question or anything to do with

other people.” 174 Walsh then asked Sanders if he would “still continue

answering questions.” 175

Sanders clarified that he would only answer

questions regarding Suellen and L.R. 176

Sanders’s invocation of his right to counsel was arguably

unambiguous.

“[A] reasonable police officer” would have understood

Sanders’s statement “to be a request for an attorney.” 177 Walsh then asked

“[a]bout what,” and Sanders limited his invocation to certain topics.

However, “an accused’s postrequest responses to further interrogation may

not be used to cast retrospective doubt on the clarity of the initial request

itself.” 178 After Walsh asked Sanders “[a]bout what,” Sanders’s response

clarified that he was limiting his invocation of the right to counsel.

171

ROA.204-05.

172

ROA.1682 (emphasis added).

173

ROA.5648.

174

ROA.5648.

175

ROA.5648.

176

ROA.5648.

177

Davis v. United States, 512 U.S. 452, 459 (1994).

178

Smith v. Illinois, 469 U.S. 91, 100 (1984).

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Nonetheless, we cannot know whether Sanders would have limited his

invocation without the prompting question from Walsh. Because we are

confident that any error was harmless beyond a reasonable doubt, we will

assume without deciding for the purpose of this appeal that the district court

erred in finding the invocation limited. 179

Sanders does not expressly argue that the admission of his statements

requires reversal of his convictions. Instead, he argues that the government

used his statements during the penalty phase to attack his mitigation case,

“which

emphasized

acceptance

responsibility

and

impaired

functioning.” 180

More specifically, Sanders claims that the government used his

statements “as ‘proof of [his] memory and recollection of [the] day that he

killed Suellen’” in order to rebut his claims of cognitive and mental

impairments. 181 However, we have concluded that the following statements

were admissible: (1) statements from the first interview in the vehicle;

(2) statements from the second interview at the FBI office; and

(3) statements from the first forty-eight minutes of the third interview at the

correctional facility. The only inadmissible statements are those given after

the forty-eight-minute mark during the third interview. The statements

Sanders made during the first forty-eight minutes demonstrated that he could

remember a great deal about the day he murdered Suellen. 182 The same is

true for the statements Sanders made during the two prior interviews. From

179

See United States v. Cannon, 981 F.2d 785, 789-90 (5th Cir. 1993).

180

Sanders Br. at 57.

181

Sanders Br. at 66 (citing ROA.3368).

182

ROA.5617-48.

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this properly admitted evidence, the government was able to argue that

Sanders could remember more about his crimes than he otherwise suggested.

Sanders also argues that the government capitalized on his refusal to

explain why he committed the crimes to demonstrate he “lacked remorse for

his actions.” 183 During the first interview, Sanders refused to answer when

he was asked why he killed Suellen and L.R. Dr. Thompson testified that it

was his opinion that Sanders remembered why he killed Suellen and L.R., but

Sanders did not want to answer the question. 184 Based on Dr. Thompson’s

testimony, the government was able to argue that Sanders was unwilling to

discuss why he killed either victim. A reasonable inference from this

testimony is that Sanders was not remorseful.

In sum, the most that can be said of Sanders’s inadmissible statements

is that they were cumulative of other properly admitted evidence. Admission

of his statements “did not influence the jury, or had but very slight effect”

on its analysis. 185 Sanders is not entitled to a new trial.

Sanders asserts he was charged with two crimes and was sentenced

twice for one act in violation of the Double Jeopardy Clause of the Fifth

Amendment, as explicated in Blockburger v. United States. 186 “We review the

district court’s denial of a motion to dismiss an indictment on double

183

Sanders Br. at 66.

184

ROA.3314, 3328 (“I do think that he remembers and that he could tell the story

of why if he wanted to tell the story.”).

185

Kotteakos v. United States, 328 U.S. 750, 764 (1946).

186

284 U.S. 299 (1932).

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jeopardy grounds de novo and accept the underlying factual findings of the

district court unless clearly erroneous.” 187

The Fifth Amendment prohibits “an individual from being subjected

to the hazards of trial and possible conviction more than once for an alleged

offense.” 188 Sanders has been subjected to only one trial, so his right to be

free from multiple trials for the same offense is not at issue. 189 His complaint

is two-fold. He contends that he cannot be subjected to two punishments for

the same crime. He also contends that even if this court invalidates his

conviction based on Count Two, we must remand for resentencing because

being charged with two counts that were potentially punishable by death

“implicated the reliability of the proceeding under the Eighth Amendment

and 18 U.S.C. §3593(c).” 190 He essentially argues that “because jurors may

get the faulty impression that just because there are two counts, the crime is

worse or the defendant more culpable—and therefore more deserving of

death.” 191

He made similar arguments in another section of his brief

regarding a different issue that we do not reach in this appeal. 192

187

United States v. Jones, 733 F.3d 574, 579-80 (5th Cir. 2013) (italics omitted)

(quoting United States v. Gonzalez, 76 F.3d 1339, 1342 (5th Cir. 1996)).

188

Missouri v. Hunter, 459 U.S. 359, 365 (1983) (quoting Burks v. United States, 437

U.S. 1, 11 (1978)).

189

See id. (“Because respondent has been subjected to only one trial, it is not

contended that his right to be free from multiple trials for the same offense has been

violated.”).

190

Sanders Br. at 54-56.

191

Sanders Br. at 54.

192

Sanders Br. at 49 (“More counts may prejudice the jury against the defendant

by creating the impression of more criminal activity. . . . There is no other way to be sure

that the unlawful conviction did not ‘skew[]’ the weighing process, putting a

‘thumb . . . [on] death’s side of the scale.’” (quoting Stringer v. Black, 503 U.S. 222, 232

(1992))).

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The commutation of Sanders’s death sentences to life sentences

without possibility of parole has mooted his contention that the penalty phase

of his trial was tainted and resentencing is required. The only sentencing

options before the jury were a death sentence or a life sentence without

possibility of parole for each of Counts One and Two. 193 Sanders does not

contend that he is or would have been eligible for a sentence other than life

without possibility of parole but for a double jeopardy violation. We therefore

consider only whether one of his two sentences to life without possibility of

parole must be invalidated due to a double jeopardy violation.

The Supreme Court held in Blockburger that the government is

prohibited from charging a defendant in a single trial with “two distinct

statutory provisions” for the “same act or transaction” unless “each

provision requires proof of a fact which the other does not.” 194

indictment

violating

Blockburger’s

requirements

said

multiplicitous. 195 However, the Supreme Court has repeatedly explained

that “[t]he question of what punishments are constitutionally permissible is

no[t] different from the question of what punishment[s] the Legislative

Branch intended to be imposed. Where Congress intended . . . to impose

multiple punishments, imposition of such sentences does not violate the

Constitution.” 196

If the cumulative punishment is authorized by the

legislature, it does not run afoul of the Double Jeopardy Clause. If the

legislature authorizes cumulative punishment, even if the statutes fail the

193

See, e.g., ROA.3410 (penalty phase jury instructions).

194

Blockburger v. United States, 284 U.S. 299, 304 (1932).

195

See United States v. Nguyen, 28 F.3d 477, 482 (5th Cir. 1994).

196

Missouri v. Hunter, 459 U.S. 359, 368 (1983) (emphasis omitted) (quoting

Albernaz v. United States, 450 U.S. 333, 344 (1981)).

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Blockburger test, “the prosecutor may seek and the trial court or jury may

impose cumulative punishment under such statutes in a single trial.” 197

Sanders’s indictment charged him with one count of interstate

kidnapping resulting in death under 18 U.S.C. § 1201(a), and one count

under 18 U.S.C. § 924(c)(1)(A) and (j)(1) for murdering a person through the

use of a firearm during a crime of violence. 198 The charge of kidnapping

under § 1201(a) served as the predicate crime of violence for the § 924

offense. 199 The district court observed that the § 924(j) offense required

proof of intent to murder and use of a firearm, while the § 1201(a) offense did

not. 200 However, as a predicate offense, the kidnapping charge did not

require proof of a fact that § 924 did not. Accordingly, the offenses fail the

elements test under Blockburger.

We therefore must determine whether Congress authorized

cumulative punishment for violations of § 1201(a) and § 924(c)(1)(A) and

(j)(1). The district court concluded that Congress did authorize cumulative

punishment. 201

In United States v. Singleton, 202 this court held that charging a

defendant with both a crime of violence and a violation of § 924(c) does not

violate the Double Jeopardy Clause. 203 Our analysis turned on the fact that

§ 924(c) requires cumulative punishment, and the statute therefore made

197

Id. at 369.

198

ROA.97-100.

199

ROA.98.

200

ROA.849-50.

201

ROA.850-51.

202

16 F.3d 1419 (5th Cir. 1994).

203

Id. at 1429.

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clear that Congress intended “to punish cumulatively” a § 924(c) violation

and the underlying predicate offense. 204 However, Singleton is not on point

because § 924(j), unlike § 924(c), does not expressly require cumulative

punishment.

Relying on this court’s opinion in United States v. Gonzales, 205 Sanders

asserts that § 924(j)(1) does not authorize cumulative punishment for his two

convictions. 206 He points to this court’s statement that “[t]he express

language demonstrating the legislature’s intent for cumulative punishment is

absent in section 924(j).” 207 Despite this language, we are not convinced that

Gonzales controls the instant case. In Gonzales, we addressed whether

charging a defendant with subsections 924(c) and (j) as two separate counts for

the same act violated double jeopardy. 208 We recognized that those two

subsections of the statute failed the Blockburger test. 209 We also distinguished

Gonzales’s offenses from those in Singleton. We explained that Gonzales’s

convictions were two subsections of one statute, whereas in Singleton, there

were convictions pursuant to two separate statutes. 210 We concluded that

two convictions under subsections of the same statute made it “less likely

that Congress intended sentences for subsections 924(c) and (j) to be

imposed for the same conduct, especially absent any express textual evidence

204

Id. at 1425.

205

841 F.3d 339 (5th Cir. 2016).

206

Sanders Br. at 53.

207

Sanders Br. at 53 (quoting Gonzales, 841 F.3d at 357).

208

Gonzales, 841 F.3d at 354.

209

Id. at 354-58.

210

Id. at 357.

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of such a desire.” 211 Ultimately, we followed the prevailing view of the

circuits and held that “there is insufficient indication that Congress intended

sentences to be imposed under both subsection 924(j) and the lesser included

offense of subsection 924(c) for the same conduct to overcome the

Blockburger presumption.” 212

The Supreme Court subsequently addressed the interplay between

subsections 924(c) and 924(j), holding in Lora v. United States 213 that the

latter permitted, but did not require, a district court to impose a sentence

under § 924(j) to run consecutive to another sentence. 214 In Lora, the

defendant was convicted of “aiding and abetting a violation of § 924(j)(1)”

and also of “conspiring to distribute drugs, in violation of 21 U.S.C. §§ 841

and 846.” 215 The district court held that it lacked discretion to impose the

defendant’s § 924(j)(1) sentence to run concurrently with the sentence

imposed for the drug conspiracy conviction. The Supreme Court held the

district court erred in this regard, explaining that “[b]ecause the consecutivesentence mandate in § 924(c)(1)(D)(ii) does not govern § 924(j) sentences,

the District Court had discretion to impose Lora’s § 924(j) sentence

concurrently with another sentence.” 216

The Supreme Court stated

specifically “that subsection (j) permits flexibility to choose between

concurrent and consecutive sentences.” 217

211

Id.

212

Id. at 358.

213

599 U.S. 453 (2023).

214

See id. at 455, 464.

215

Id. at 455.

216

Id. at 464.

217

Id. at 463.

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In Lora, the Supreme Court discussed the Double Jeopardy Clause,

but in a different context from that raised by Sanders in the present appeal.

In Lora, the Government argued that “a defendant may be punished for either

a Section 924(c) offense or a Section 924(j) offense, but not both.” 218 The

Supreme Court “express[ed] no position” on this view. 219

We note that several decisions from other circuits seem to be in

conflict with Lora regarding the interplay between § 924(c) and § 924(j). 220

We do not rely on those decisions. The Supreme Court made clear in Lora

that “Congress plainly chose a different approach to punishment in

subsection (j) than in subsection (c).” 221 We conclude that the express

authorization of cumulative sentences in § 924(c) is not part of § 924(j).

Both § 924(j) and § 1201(a) authorize a sentence of life imprisonment

or death. However, it is not clear from either of these statutes that Congress

intended the punishment under either to be cumulative (consecutive). The

Supreme Court explained in Whalen v. United States that “where the offenses

are the same under [the Blockburger] test, cumulative sentences are not

218

Id. at 461.

219

Id.

220

See United States v. Berrios, 676 F.3d 118, 138-44 (3d Cir. 2012), abrogated by

Lora v. United States, 599 U.S. 453 (2023); United States v. Bran, 776 F.3d 276, 280-82 (4th

Cir. 2015), abrogated by Lora v. United States, 599 U.S. 453 (2023); see also United States v.

Dinwiddie, 618 F.3d 821, 837 (8th Cir. 2010) (applying plain error review); United States v.

Battle, 289 F.3d 661, 665-69 (10th Cir. 2002) (applying plain error review), overruled on

other grounds by United States v. Melgar-Cabrera, 892 F.3d 1053, 1060 & n.3 (10th Cir. 2018);

United States v. Allen, 247 F.3d 741, 769 (8th Cir. 2001) (“Congress fully and clearly

intended to permit cumulative punishments for violations of [a predicate offense statute]

and § 924(j).”), vacated on other grounds, 536 U.S. 953 (2002); United States v. Ventura, 742

F. App’x 575, 579 (2d Cir. 2018), abrogated by Lora v. United States, 599 U.S. 453 (2023).

221

Lora, 599 U.S. at 462.

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permitted, unless elsewhere specially authorized by Congress.” 222

therefore conclude that Sanders’s two sentences do violate the Double

Jeopardy Clause. Accordingly, we vacate Sanders’s sentence based on his

conviction under § 924(j).

Sanders contends that African-Americans and young adults were

excluded from the grand and petit jury venires in violation of due process,

equal protection, the Sixth Amendment’s “fair cross-section” requirement,

and the Jury Service and Selection Act. 223 Relatedly, we consider whether

the district court abused its discretion when it denied Sanders’s request for

discovery regarding the composition of the jury venires. We review the

district court’s factual findings for clear error and its legal conclusions de

novo. 224

With respect to Sanders’s due process and equal protection

challenges to the venires, Sanders concedes that there was no “proof of

intentional discrimination” and that Supreme Court precedent precludes

relief under this theory. 225 He raises these two arguments to preserve them

for review by the Supreme Court.

222

445 U.S. 684, 693 (1980).

223

Sanders Br. at 68; 28 U.S.C. §§ 1861-63.

224

See United States v. McKinney, 53 F.3d 664, 670 (5th Cir. 1995) (reviewing a

factual determination for clear error); United States v. Hemmingson, 157 F.3d 347, 358 (5th

Cir. 1998) (“[T]o the extent the decision rests on the court’s interpretation of the Act’s

language, the standard of review is de novo.” (italics omitted)).

225

Sanders Br. at 82 (first citing Swain v. Alabama, 380 U.S. 202, 203-05 (1965),

overruled on other grounds by Batson v. Kentucky, 476 U.S. 79 (1986); and then citing

McCleskey v. Kemp, 481 U.S. 279, 292 (1987)).

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We next turn to his argument that the jury venires were not selected

from a fair cross-section of the community in violation of the Sixth

Amendment. To make a prima facie showing of this claim, a defendant must

demonstrate:

(1) that the group alleged to be excluded is a “distinctive”

group in the community; (2) that the representation of this

group in venires from which juries are selected is not fair and

reasonable in relation to the number of such persons in the

community; and (3) that this underrepresentation is due to

systematic exclusion of the group in the jury-selection

process. 226

Sanders contends that young adults were improperly excluded from

his venires. 227 Sanders’s grand jury was empaneled in 2010 and drawn from

a master jury wheel that was filled in 2007. 228 In 2014, Sanders’s petit jury

was drawn from a master jury wheel that was filled in 2011. 229 Because the

master wheels were three years old, people roughly between the ages of

eighteen and twenty-one were unable to serve on either of Sanders’s juries.

In United States v. Gooding, 230 we held that a jury plan’s exclusion of young

citizens between eighteen and twenty-one years old does not violate the fair

cross-section requirement. 231 We rejected the claim that “those who have

become eligible for jury service by attaining voting age within the last three

years and four months” constitute a distinct group such that “their

226

Duren v. Missouri, 439 U.S. 357, 364 (1979).

227

Sanders Br. at 68.

228

ROA.833.

229

ROA.1280, 1290.

230

473 F.2d 425 (5th Cir. 1973).

231

Id. at 429-30.

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temporary exclusion from jury service violates their statutory right to serve

on juries or [the] defendant’s right to a fair trial.” 232 Sanders has failed to

establish the first prong of the prima facie case—that this group is distinctive

within the community. Although Sanders invites us to reconsider our

holding in Gooding, we are not free to do so in the absence of an intervening

change of precedent. 233

With respect to Sanders’s challenge to the grand and petit venires

based on the alleged exclusion of African-Americans, our precedent makes

clear that they qualify as a distinctive group within the community under the

first prong of the prima facie case. 234 However, the parties dispute whether

African-Americans were sufficiently underrepresented, the second prong of

the prima facie case.

We first consider the grand jury venire. To determine whether a

defendant has shown that the representation of a group is not fair and

reasonable, we measure the absolute disparity between the proportion of

jury-eligible African-Americans in the community and their representation

on the venire. 235 The district court used the 2013 Clerk of Court’s AO12

Statistics Report, which provided that African-Americans constituted 32% of

the community and 23.35% of the qualified jury wheel. 236 The district court

232

Id. at 430.

233

United States v. Traxler, 764 F.3d 486, 489 (5th Cir. 2014).

234

United States v. Williams, 264 F.3d 561, 568 (5th Cir. 2001).

235

See Berghuis v. Smith, 559 U.S. 314, 323 (2010) (explaining how to calculate

absolute disparity); United States v. Maskeny, 609 F.2d 183, 190-91 (5th Cir. 1980) (relying

on absolute disparity in resolving challenges to representation of distinctive groups on jury

venires).

236

ROA.567-68 (dated 8/28/2013).

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found that there was an absolute disparity of 8.65%. 237 Contrary to Sanders’s

argument, 238 the district court did not find that the estimates from the census

should be used in place of the actual census data. 239 Instead, the district court

held that even if Sanders’s own estimates showing a disparity of 10.81% were

used, it would not find that 10.81% disparity sufficient to satisfy the second

prong. 240 We agree with the district court that a 10.81% disparity offers

Sanders no relief. This court has found that absolute disparities of 10% and

11% failed to satisfy the second prong of the prima facie case. 241 Because

Sanders failed to satisfy the second prong, we need not consider the third

prong of the prima facie case—whether the existing disparity was the result

of systematic exclusion.

We now turn to the claim that African-Americans were

underrepresented on the petit jury venire. To determine whether Sanders

had made a showing with respect to the second prong of the prima facie case,

the district court used the 2012 Clerk of Court’s AO12 Statistics Report,

which provided that African-Americans constituted 29.4% of the community

and 18.12% of the qualified jury wheel. 242

The absolute disparity was

therefore 11.28%. We have “recognized that absolute disparities of 19.7%,

237

ROA.836-37.

238

Sanders Br. at 70.

239

ROA.837.

240

ROA.837-38.

241

Mosley v. Dretke, 370 F.3d 467, 479 (5th Cir. 2004) (“This Court has also

recognized that absolute disparities of 10% or less are insufficient to establish statistical

discrepancies worthy of relief.” (citing United States v. Maskeny, 609 F.2d 183, 190 (5th

Cir. 1980))); Thompson v. Sheppard, 490 F.2d 830, 832-34 (5th Cir. 1974) (affirming a

district court judgment that had resulted in the compilation of a new jury list with an 11%

disparity).

242

ROA.1019-20 (dated 2/24/2012).

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14.7% and 13.5% are sufficient to satisfy this prong.” 243 However, as stated

above, this court has found that absolute disparities of 10% and 11% failed to

satisfy the second requirement of the prima facie case. Here, the 11.28%

disparity is only marginally different from the 11% disparity this court found

insufficient to meet the second prong. 244 We are not persuaded that a

disparity of 11.28% is sufficient to satisfy the second prong when 11% is not.

Because Sanders fails to satisfy the second prong, we need not consider the

third prong. Accordingly, Sanders has failed to show a violation of the Sixth

Amendment’s fair cross-section requirement.

Sanders further argues that he is entitled to relief under the Jury

Service and Selection Act. 245 The Act ensures “the right to grand and petit

juries selected at random from a fair cross section of the community in the

district or division wherein the court convenes.” 246 To obtain relief, Sanders

“must prove a ‘substantial failure’ to comply with the Act’s provisions.” 247

Specifically, he must demonstrate noncompliance with the Act “that

destroys the random nature or objectivity of the selection process.” 248

Sanders fails to make such a showing.

Sanders’s arguments mirror the arguments he raised to demonstrate

a violation of the Sixth Amendment’s fair cross-section requirement. He

faults the jury-selection procedures insofar as using “voter registration lists

243

Mosley, 370 F.3d at 479.

244

Thompson, 490 F.2d at 832-34.

245

Sanders Br. at 77.

246

28 U.S.C. § 1861.

247

United States v. Olaniyi-Oke, 199 F.3d 767, 772 (5th Cir. 1999) (quoting United

States v. Hemmingson, 157 F.3d 347, 358 (5th Cir. 1998)).

248

Id.

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produced a statistically significant [underrepresentation] of AfricanAmerican jurors,” and “[r]econstituting the juror list only every four years”

negatively impacted the number of African-Americans and young citizens

eligible to serve as jurors. 249 However, the Act expressly allows the selection

of jurors based on voter registration rolls and authorizes refilling the master

jury wheel every four years. 250 Sanders’s arguments that these specific,

statutorily authorized features of the district court’s jury-selection plan

violated the Act are therefore unconvincing. This claim fails to merit relief.

Finally, Sanders contends that the district court erred in denying his

motion for discovery. 251

We review rulings on discovery for abuse of

discretion. 252 Sanders requested documents in the government’s possession

concerning the composition of each venire. He argues that the government

had discoverable information in light of its then-ongoing civil suit against the

State of Louisiana for violations of the National Voter Registration Act. 253

We decline to hold that the district court abused its discretion because any

information in the government’s possession would only have been relevant

insofar as it could have shed light on whether any racial disparity was “due

to systematic exclusion of [African-Americans from] the jury-selection

process,” which is the third prong of the prima facie case. 254 As discussed,

because Sanders failed to satisfy the first prong with respect to young people

and the second prong with respect to African-Americans, we do not need to

249

Sanders Br. at 70.

250

28 U.S.C. § 1863(b)(2), (4).

251

Sanders Br. at 72.

252

United States v. Conn, 657 F.3d 280, 284 (5th Cir. 2011) (per curiam), abrogated

on other grounds by Davis v. United States, 589 U.S. 345 (2020) (per curiam).

253

Sanders Br. at 74.

254

Duren v. Missouri, 439 U.S. 357, 364 (1979).

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reach the third prong. With no need for this discovery, Sanders has failed to

show that the district court abused its discretion in denying his request.

Sanders asserts that the district court erred in death-qualifying the

jury. Death-qualifying is removing for cause “prospective jurors whose

opposition to the death penalty is so strong that it would prevent or

substantially impair the performance of their duties as jurors at the

sentencing phase of the trial.” 255 Sanders argues that: (1) death-qualifying a

jury is not authorized by federal law or common law; (2) death-qualification

violates the Sixth Amendment’s fair cross-section requirement; and

(3) death-qualification violates the First Amendment. 256

As to his first argument, Sanders contends that the regulation of

challenges for cause is left to the common law or to federal statutes. 257 He

argues that the Supreme Court allowed death-qualification in state court

cases only after state legislatures had authorized the practice. 258 He contends

that because neither the common law nor Congress has authorized the

practice, the district court erred in death-qualifying the jury over his

objection. 259 However, as the government notes, 28 U.S.C. § 1866(c)(2)

permits courts to excuse jurors who “may be unable to render impartial jury

service.” In Wainwright v. Witt, 260 the Supreme Court explained that an

impartial jury consists of “jurors who will conscientiously apply the law and

255

Lockhart v. McCree, 476 U.S. 162, 165 (1986).

256

Sanders Br. at 83.

257

Sanders Br. at 85.

258

Sanders Br. at 84-85.

259

See Sanders Br. at 85-86.

260

469 U.S. 412 (1985).

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find the facts.” 261 The Court rejected the proposition that a defendant who

is being tried for a capital crime “is entitled to a legal presumption or

standard that allows jurors to be seated who quite likely will be biased in his

favor.” 262 The Court made clear that the “proper standard for determining

when a prospective juror may be excluded for cause because of his or her

views on capital punishment . . . is whether the juror’s views would ‘prevent

or substantially impair the performance of his duties as a juror in accordance

with his instructions and his oath.’” 263 The reasoning espoused in Witt,

when coupled with the enabling language in § 1866(c), allows district courts

to death-qualify juries in federal cases. The district court did not err in

determining whether the prospective jurors’ views on capital punishment

would prevent or substantially impair the performance of their duties in

accordance with their instructions and oath.

With respect to the second argument, Sanders recognizes that in

Lockhart v. McCree, 264 the Supreme Court rejected the argument that deathqualification of a jury violated the Sixth Amendment’s fair cross-section

requirement. 265 Nevertheless, he contends that there is now empirical

evidence that demonstrates that excluding prospective jurors who do not

believe in the death penalty is excluding members of protected classes such

as women and racial minorities. 266 Sanders states that this evidence was

unavailable over thirty years ago at the time of the Supreme Court’s decision.

261

Id. at 423.

262

Id.

263

Id. at 424 (quoting Adams v. Texas, 448 U.S. 38, 45 (1980)).

264

476 U.S. 162 (1986).

265

Sanders Br. at 87 (citing Lockhart, 476 U.S. at 165).

266

Sanders Br. at 87.

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We note that more recently, in 2011, relying on Lockhart, we rejected this

argument. 267 We may not overrule the decision of a prior panel in the absence

of en banc consideration or a superseding Supreme Court decision. 268 We

are bound by both Supreme Court and Fifth Circuit precedent and must deny

relief on this claim.

Finally, Sanders argues that death-qualifying the jury “infringes on

freedom of religion.” 269 Sanders contends that the district court erred in

including questions about prospective jurors’ religious beliefs on its jury

questionnaire and during voir dire. District courts are afforded “great

latitude in deciding what questions should be asked on voir dire.” 270 Here,

the questionnaire asked whether the prospective jurors’ religion had a

“position on the propriety of . . . the death penalty.” 271 In United States v.

Whitfield, 272 this court held that a district court does not abuse its discretion

when it excuses a prospective juror because “her religious beliefs prevented

her from passing judgment on others.” 273 Although Whitfield was not a

capital case, the Supreme Court has made clear that empaneling an impartial

jury is grounded in the Sixth Amendment and not the Eighth Amendment. 274

If a prospective juror’s religious beliefs would prevent the person from

267

United States v. Simpson, 645 F.3d 300, 312 (5th Cir. 2011) (“Death penalty

opponents are not a ‘distinctive group,’ and ‘death qualification does not violate the faircross-section requirement.’” (quoting Lockhart, 476 U.S. at 177)).

268

United States v. Lipscomb, 299 F.3d 303, 313 n.34 (5th Cir. 2002).

269

Sanders Br. at 89.

270

Mu’Min v. Virginia, 500 U.S. 415, 424 (1991) (italics omitted).

271

ROA.5665.

272

590 F.3d 325 (5th Cir. 2009).

273

Id. at 360.

274

Wainwright v. Witt, 469 U.S. 412, 423 (1985).

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impartially applying the law, the district court has discretion to excuse that

person. 275 Sanders has failed to show that the district court abused its

discretion in inquiring how a prospective juror’s religious beliefs would

impact the juror’s ability to follow the law in this capital case.

VII

Sanders contends that the district court erred in granting the

government’s motion to strike a venire member for cause based solely on her

answers to the juror questionnaire without any voir dire. 276 The district court

struck her based on her views regarding the death penalty. 277 As previously

discussed, a “court may strike jurors for cause if their views on capital

punishment would ‘prevent or substantially impair’ the performance of their

duties ‘in accordance with the instruction[s] and oath.’” 278 Sanders objected

to the court’s granting the motion to strike the venire member. 279

This court reviews “such claims for abuse of discretion, affording

‘considerable deference’ to the trial court.” 280 Relying on a Tenth Circuit

opinion, Sanders asserts that this claim should be reviewed de novo because

the exclusion of the venire member was based on written answers to a juror

275

Id.

276

Sanders Br. at 92.

277

ROA.3476.

278

United States v. Fields, 483 F.3d 313, 357 (5th Cir. 2007) (quoting United States

v. Webster, 162 F.3d 308, 340 (5th Cir. 1998)).

279

ROA.3476. This was the only venire member the court struck prior to voir dire

based on the government’s objection. The district court also granted the defense’s forcause challenges to three venire members based solely on their questionnaire responses.

ROA.6196.

280

Fields, 483 F.3d at 357 (quoting United States v. Bernard, 299 F.3d 467, 474 (5th

Cir. 2002)).

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questionnaire without any voir dire. 281 As Sanders recognizes, other circuits

have held that the abuse-of-discretion standard applies even when the

exclusion is made without any voir dire. 282 We need not determine which

standard of review applies because we are not persuaded that the district

court erred under either one.

Sanders asserts that the venire member’s answers did not

demonstrate that the venire member would automatically choose a life

sentence. 283 However, we have stated that a “district court is not limited to

disqualifying only those jurors who would never vote for the death penalty

but can excuse those who cannot set aside their own predilections in

deference to the rule of law.” 284

On the morning of the first day of jury selection, the district court

explained that it had sustained the government’s challenge to the instant

venire member because the “person’s answers appeared to be rather off the

wall.” 285 The court further stated that the “particular emphasis on religion

that she had in her answers and her general views with regard to the death

penalty and, finally, her statement here that her son was killed and she felt it

was a cover-up” were “bizarre.” 286

281

Sanders Br. at 93 (citing United States v. Chanthadara, 230 F.3d 1237, 1269-70

(10th Cir. 2000)).

282

United States v. Quinones, 511 F.3d 289, 302-04 (2d Cir. 2007); United States v.

Purkey, 428 F.3d 738, 750 (8th Cir. 2005).

283

Sanders Br. at 93.

284

United States v. Flores, 63 F.3d 1342, 1356 (5th Cir. 1995) (citation omitted).

285

ROA.3476.

286

ROA.3476.

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On the questionnaire, the venire member’s answers provided that it

was God’s “job” to judge—not man’s. 287 Referring to the Bible, she wrote

that it says thou shalt not kill. 288 Her view was that executing a person

because he had killed someone was just as wrong as the initial murder. 289 Her

answers also indicated that she was skeptical of the criminal justice system

and thought it had unjustly treated her brother. 290 She stated that her son

had been killed, and she believed there was a cover-up. 291

When the

questionnaire asked if she could be a fair and impartial juror after hearing

graphic testimony and viewing photographs of injuries from a violent crime,

she checked “maybe” and wrote that it depended on the evidence and if the

defendant had been “set up.” 292 When asked whether she could follow the

court’s instructions not to allow sympathy, bias, or prejudice to enter into the

jury’s deliberations with respect to whether the defendant was guilty, she

wrote, “I don’t know.” 293

We are persuaded that the venire member’s answers demonstrated

that she would have had difficulty or would have been unable to follow the

court’s instructions. The venire member’s answers to the questionnaire

demonstrated that she had views on the death penalty that would have

prevented or substantially impaired the performance of her duties in

287

ROA.5665.

288

ROA.5665.

289

ROA.5665.

290

ROA.5670.

291

ROA.5668.

292

ROA.5675.

293

ROA.5675.

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accordance with the court’s instructions and her oath. Sanders has not

shown that the district court erred in striking this venire member for cause.

VIII

Sanders argues that the evidence was insufficient to support the

kidnapping verdict because the government presented no evidence of any

purpose for the abduction of L.R. 294 Sanders preserved this argument before

the district court. 295 We review challenges to the sufficiency of the evidence

de novo, viewing the evidence in the light most favorable to the

prosecution. 296

Sanders was convicted of kidnapping in violation of 18 U.S.C.

§ 1201(a), which provides in relevant part that:

Whoever unlawfully . . . kidnaps . . . and holds for ransom or

reward or otherwise any person . . . when the person is willfully

transported in interstate or foreign commerce . . . shall be

punished by imprisonment for any term of years or for life and,

if the death of any person results, shall be punished by death or

life imprisonment.

Sanders argues that the government failed to prove the element of held for

“ransom, reward or otherwise” under the kidnapping statute. 297 More

specifically, he contends that the government failed to submit any evidence

of the purpose of, or the benefit derived from, the kidnapping. 298 This court

has explained that the holding of the victim is the gravamen of the element

294

Sanders Br. at 102.

295

ROA.2327-30.

296

United States v. Njoku, 737 F.3d 55, 62 (5th Cir. 2013).

297

Sanders Br. at 102.

298

Sanders Br. at 103.

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and “not the benefit.” 299

We explained that the Supreme Court has

“interpreted the ‘or otherwise’ . . . to encompass any benefit a captor might

attempt to receive” and that the purpose did not have to be illegal. 300

“Although the government must plead and prove that the defendant held the

victim for some purpose, the exact nature of that purpose is inconsequential.

Indeed, . . . any purpose will do.” 301 Further, the jury is not required to

unanimously agree on the purpose for the kidnapping. 302

Sanders argues that the only relevant evidence in the record stems

from the police’s questioning him regarding his motive for kidnapping, and

he responded that he did not know what to do. 303 He argues there is no

evidence regarding the purpose of the kidnapping. We are not persuaded by

this argument. The jury was free to infer from the evidence that Sanders

kidnapped L.R. because she was the only witness to her mother’s murder.

The government contends that Sanders’s driving away in the aftermath of

the murder gained him distance and time to determine what he would do with

L.R. 304 The fact that he murdered L.R. at the end of the road trip confirms

that Sanders had a purpose for the kidnapping. Sanders’s argument would

require that a defendant confess his motive in order for a jury to convict him

of kidnapping the victim. We are satisfied that the evidence showed Sanders

kidnapped L.R. for a purpose. His argument is wholly without merit.

299

United States v. Webster, 162 F.3d 308, 328 (5th Cir. 1998).

300

Id. (citing Gooch v. United States, 297 U.S. 124, 128 (1936)).

301

Id. at 329.

302

Id. at 329-30.

303

Sanders Br. at 104.

304

Government Br. at 81.

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Sanders also contends that the evidence is insufficient to support the

three statutory aggravating factors found by the jury 305—those being, (1) the

death of L.R. occurred during the commission of a kidnapping; (2) the

offense involved substantial planning and premeditation; and (3) L.R. was

particularly vulnerable due to her youth. 306 “[A] defendant is not death

eligible unless the sentencing jury also finds that the Government has proved

beyond a reasonable doubt at least one of the statutory aggravating factors set

forth at [18 U.S.C.] § 3592.” 307

Because it is unclear whether the

commutation of Sanders’s death sentences to life sentences without parole

mooted Sanders’s contentions, we consider them.

The government asserts that Sanders did not object in the district

court to the insufficiency of the evidence to support any of the three statutory

aggravating factors, and thus, these claims should be reviewed for plain

error. 308 Because Sanders does not dispute the government’s assertion in his

reply brief, and because we have found no such objection in the record, we

review these claims for plain error.

This court reviews “jury findings of aggravating factors by asking

whether, after viewing the evidence in a light most favorable to the

government, any rational trier of fact could have found the existence of the

aggravating circumstance beyond a reasonable doubt.” 309 For the jury to find

the first factor, the government was required to prove that the death of L.R.

305

Sanders Br. at 106.

306

ROA.1613-14.

307

Jones v. United States, 527 U.S. 373, 376-77 (1999) (citing 18 U.S.C. § 3593(e)).

308

Government Br. at 103.

309

United States v. Bernard, 299 F.3d 467, 481 (5th Cir. 2002).

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occurred during the commission of a kidnapping. 310 As set forth above, the

evidence was sufficient to show that the death of L.R. occurred during a

kidnapping in violation of 18 U.S.C. § 1201(a). Sanders has failed to show

plain error.

For the second factor, the government was required to prove the

offense involved substantial planning and premeditation. 311

[A] killing is ‘premeditated’ when it is the result of planning or

deliberation. The amount of time needed for premeditation of

a killing depends on the person and the circumstances. It must

be long enough for the killer, after forming the intent to kill, to

be fully conscious of that intent. 312

The evidence at trial established that, just prior to leaving on the Labor Day

weekend trip with Suellen and L.R., Sanders purchased ammunition for his

rifle. He packed his rifle, the newly purchased ammunition, and a knife for

the trip. After killing Suellen, Sanders confessed that he “made [L.R.] get in

the car and we left.” 313 The evidence showed that Sanders drove L.R. in

Suellen’s car for three or four days across several states until he decided what

to do with her. He took her to a remote area that was not far from his

childhood home. 314 There, he used the rifle and the knife he had packed to

kill L.R. He shot L.R. in the head three times and once in the chest. The

evidence showed that the rifle required reloading after each shot. After

shooting her four times, he violently slit her throat with the knife he had

310

18 U.S.C. § 3592(c)(1).

311

Id. § 3592(c)(9).

312

See United States v. Snarr, 704 F.3d 368, 392 (5th Cir. 2013) (quoting United

States v. Agofsky, 516 F.3d 280, 282 n.2 (5th Cir. 2008)).

313

ROA.5777.

314

ROA.2144, 2780-81.

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packed. Sanders asserts that although the evidence may be sufficient to show

substantial planning for the murder of Suellen, the evidence is insufficient to

show substantial planning for the kidnapping and murder of L.R. 315 We

disagree. Based on the evidence before it, the jury could rationally infer

planning and premeditation with respect to the kidnapping and murder of

L.R. Viewing this evidence in the light most favorable to the government, we

are convinced that any rational trier of fact could have found that the

kidnapping and murder of L.R. involved substantial planning and

premeditation. Sanders has certainly not shown plain error.

For the third factor, the government was required to prove that the

victim was particularly vulnerable due to her youth. 316 It is undisputed that

L.R. was a twelve-year-old child. Sanders contends that although L.R. was

young, she “would not have been relatively disadvantaged confronting [him],

compared to adults in the same situation.” 317 Sanders points out that L.R.’s

mother, an adult woman, was unable to escape being murdered by him. 318

Here, the jury could find that the victim was particularly vulnerable due to

her age and the evidence at sentencing that showed her innocent and childish

mindset. For example, L.R.’s sixth grade teacher testified that L.R. “was just

very naïve” and that she “wasn’t as worldly wise as some sixth grade girls

can be.” 319 Moreover, on cross-examination, Marianne von Dach responded

affirmatively when asked if she “would be much more able to defend” herself

315

Sanders Br. at 107-08.

316

18 U.S.C. § 3592(c)(11).

317

Sanders Reply Br. at 35-36.

318

Sanders Br. at 109.

319

ROA.2467.

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as an adult as compared to a twelve-year-old child. 320 This testimony

supports the jury’s finding of vulnerability due to L.R.’s youth. Sanders has

not shown plain error.

Sanders argues that the government presented victim impact

testimony during the penalty phase that was so prejudicial it rendered his

sentences unconstitutional. 321

Here again, it is unclear whether the

commutation of Sanders’s death sentences to life without possibility of

parole renders this issue moot. Accordingly, we address his arguments.

Because Sanders failed to object to the testimony, we review the claim for

plain error.

In Payne v. Tennessee, 322 the Supreme Court explained that victim

impact evidence “is designed to show [a] victim’s ‘uniqueness as an

individual human being.’” 323 The prosecution

has a legitimate interest in counteracting the mitigating

evidence which the defendant is entitled to put in, by

reminding the sentencer that just as the murderer should be

considered as an individual, so too the victim is an individual

whose death represents a unique loss to society and in

particular to his family. 324

320

ROA.3196 (“Yes, probably.”).

321

Sanders Br. at 109-10.

322

501 U.S. 808 (1991).

323

Id. at 823.

324

Id. at 825 (quoting Booth v. Maryland, 482 U.S. 496, 517 (1987) (White, J.,

dissenting)).

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Victim impact evidence is admissible during sentencing unless it “is so

unduly prejudicial that it renders the trial fundamentally unfair [in violation

of] the Due Process Clause of the Fourteenth Amendment.” 325

Sanders contends that the victim impact testimony from two of L.R.’s

sixth grade teachers was inadmissible “because they were not family

members and did not testify to the effect of L.R.’s death on her family.” 326

In support of his contention, Sanders cites United States v. Fields. 327 In that

case, the Tenth Circuit opined that victim impact testimony from friends was

admissible. 328 It further stated, however, that “[w]ithout additional guidance

from the [Supreme] Court,” it would not hold that testimony with respect to

the murder’s impact on co-workers was admissible. 329 The Tenth Circuit’s

opinion indicates that the Supreme Court has not expressly addressed which

witnesses outside the victim’s family are permitted to provide victim impact

testimony. However, as quoted above, the Supreme Court has recognized

that the victim’s “death represents a unique loss to society and in particular to

his family.” 330 This language indicates that witnesses outside the family

might be permitted to testify. At the very least, allowing such witnesses to

testify would not constitute plain and obvious error.

325

Id.

326

Sanders Br. at 119.

327

516 F.3d 923 (10th Cir. 2008).

328

Id. at 946-47.

329

Id. at 947.

330

Payne, 501 U.S. at 825 (emphasis added).

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Fifth Circuit precedent does not provide clear guidance as to whether

the teachers’ testimony is admissible. 331 Other circuits have rejected the

argument that admission of victim impact testimony is only allowed to be

introduced through the victim’s family. 332 While we recognize that the

Federal Death Penalty Act (FDPA) 333 refers to the “loss suffered by the

victim and the victim’s family,” 334 the Ninth Circuit has found that language

to be illustrative and not exhaustive. 335 Under these circumstances, Sanders

has not shown that allowing non-family members to give victim impact

testimony constituted plain and obvious error. 336

Sanders also argues that the district court erred in allowing L.R.’s

great aunt, Patricia Cloutier, to read from L.R.’s journals during her

testimony. 337 Cloutier testified that L.R. would travel from Las Vegas to visit

her in New Hampshire every summer. 338 Cloutier gave L.R. two journals

during her last visit in the summer of 2010. 339 One of the journals was an

331

See United States v. Bernard, 299 F.3d 467, 477-78 (5th Cir. 2002) (addressing

whether third-party testimony “contained improper references to religion and improper

characterizations of the perpetrators and their crimes” but not specifically considering

whether, as a threshold matter, third-party victim impact testimony is admissible).

332

See United States v. Mikhel, 889 F.3d 1003, 1052-53 (9th Cir. 2018); United States

v. Lawrence, 735 F.3d 385, 405-06 (6th Cir. 2013); United States v. Whitten, 610 F.3d 168,

188 (2d Cir. 2010); United States v. Bolden, 545 F.3d 609, 626 (8th Cir. 2008).

333

18 U.S.C. §§ 3591-98.

334

Id. § 3593(a).

335

Mikhel, 889 F.3d at 1053.

336

United States v. Broussard, 669 F.3d 537, 550 (5th Cir. 2012) (explaining that if

there is no binding precedent, any error was not plain).

337

Sanders Br. at 109.

338

ROA.2472.

339

ROA.2478.

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“American Girl journal,” in which L.R. answered questions about her

feelings. 340 The journal also had lists for L.R. to write about her favorite

things such as her favorite stuffed animal, color, and holiday. 341 L.R. also

answered questions in the journal about how she would react to various

scenarios. 342 The other journal Cloutier gave L.R. was one in which L.R.

documented her trip to New Hampshire during the summer of 2010. 343

Sanders asserts that “Cloutier’s otherwise appropriate testimony

crossed into plain error” during her testimony about L.R.’s journals. 344 We

disagree.

Victim impact evidence “is designed to show [a] victim’s

‘uniqueness as an individual human being.’” 345 Further, the government

was entitled to counteract the mitigating evidence that Sanders placed before

the jury. 346 To put the challenged testimony into perspective, Cloutier’s

testimony with respect to the journals covered approximately thirty pages of

transcript, and Sanders’s evidence in mitigation covered approximately 650

pages. Although Cloutier’s testimony with respect to L.R.’s journals was

poignant and emotional, we are far from convinced that it was so unduly

prejudicial that it rendered Sanders’s sentencing hearing fundamentally

unfair. 347 Sanders has failed to show that Cloutier’s testimony constituted

plain error.

340

ROA.2478-79.

341

ROA.2482-83.

342

ROA.2485.

343

ROA.2504.

344

Sanders Br. at 114.

345

Payne v. Tennessee, 501 U.S. 808, 823 (1991).

346

Id. at 825.

347

Id.

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Sanders argues that the prosecutor’s closing argument during the

penalty phase constituted misconduct that requires a new sentencing

hearing. Here again, it is unclear whether the commutation of the death

sentences mooted this issue. The prosecutor’s argument may arguably have

affected the jury’s answer to “gateway issues,” which may have had some

impact on whether he might have been eligible for a sentence other than

imprisonment for life without the possibility of parole. We address the

arguments regarding closing argument out of an abundance of caution.

Our court follows a two-step approach when evaluating claims of

prosecutorial misconduct. 348 First, we “decide whether the prosecutor made

an improper remark” based on “the context in which [the remark was]

made.” 349 Second, if the prosecutor made an improper remark, we decide

“whether the remark ‘prejudiced the defendant’s substantive rights.’” 350

To make that determination, we consider “(1) the magnitude of the

statement’s prejudice, (2) the effect of any cautionary instructions given, and

(3) the strength of the evidence” against the defendant. 351

“The

determinative question is whether the prosecutor’s remark casts serious

doubt on the correctness of the jury’s verdict.” 352

Sanders challenges several portions of the prosecutor’s closing

argument at the penalty phase. Because Sanders did not object to any of the

348

United States v. Morganfield, 501 F.3d 453, 467 (5th Cir. 2007) (citing United

States v. Insaulgarat, 378 F.3d 456, 461 (5th Cir. 2004)).

349

Id.

350

Id. (quoting Insaulgarat, 378 F.3d at 461).

351

Id. (quoting United States v. Tomblin, 46 F.3d 1369, 1389 (5th Cir. 1995)).

352

Id. (quoting Insaulgarat, 378 F.3d at 461).

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arguments, these challenges are reviewed for plain error. 353 Sanders first

points to the following remarks made by the prosecutor during closing

argument: L.R. “didn’t deserve to spend three or four days in the car with

her mother’s murderer not knowing what was coming next. We don’t know

what other horrors she endured. We don’t know.” 354 Sanders contends that the

prosecutor’s remarks improperly insinuated that Sanders sexually abused

L.R. during the trip from Arizona to Louisiana after he killed her mother. 355

We do not agree that the complained of remarks necessarily implied that

Sanders sexually abused L.R. The undisputed evidence established that

immediately after shooting L.R.’s mother in the head, Sanders kidnapped

L.R. and drove across several states for a period of three to four days. It

would be horrific for a twelve-year-old girl to be trapped in a car for several

days and nights with the man who had murdered her mother in her presence.

Based on the evidence, the prosecutor could reasonably infer that this was a

horrifying trip for L.R. to endure. 356

Even if the remarks were construed to encourage the jury to speculate,

Sanders has failed to show that the remarks prejudiced his substantial rights.

Dr. Thompson, the government’s psychiatrist, testified that he asked

Sanders what occurred during the car trip, and Sanders responded that he

did not feel comfortable talking about it or “why” he did it. 357 Dr. Thompson

did not think that it was because Sanders could not remember what had

353

United States v. Perez-Solis, 709 F.3d 453, 466-67 (5th Cir. 2013).

354

ROA.3402 (emphasis added).

355

Sanders Br. at 123.

356

United States v. Vargas, 580 F.3d 274, 278 (5th Cir. 2009) (“A prosecutor is

confined in closing argument to discussing properly admitted evidence and any reasonable

inferences or conclusions that can be drawn from that evidence.”).

357

ROA.3313.

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happened or why he did it. 358 Dr. Thompson testified that Sanders is in a

“pretty tough situation and there may be some things he wants to keep to

himself and not tell everybody.” 359 Sanders did not object to this testimony.

This testimony apparently refers to Sanders’s conduct during the car trip

with L.R. Accordingly, prior to closing argument, the jury already had

testimony before it that invited speculation with respect to what occurred

during the car trip. The prosecutor’s remarks were of the same ilk. The

court also instructed the jury that the attorneys’ arguments do not constitute

evidence. 360 The challenged argument consists of two short sentences in a

record of several thousand pages. 361 Given the evidence of the murder of

L.R.’s mother, the duration of the kidnapping, and the manner of L.R.’s

brutal, deliberate murder, Sanders has not shown that his substantial rights

were violated. He has not shown plain error.

Based on this same alleged prosecutorial misconduct, Sanders

contends that the district court erred in denying his motion to set aside the

sentencing verdict. 362 For the same reasons we find no plain error, we also

hold that Sanders has not shown that the district court abused its discretion

in denying the motion for new trial. 363

358

ROA.3314.

359

ROA.3314.

360

ROA.3411.

361

United States v. Rice, 607 F.3d 133, 140 (5th Cir. 2010) (finding erroneous

statements to be minimal and harmless in part because the “statements occupy only a few

lines in a record that spans several thousand pages”).

362

Sanders Br. at 126.

363

See United States v. Piazza, 647 F.3d 559, 564-65 (5th Cir. 2011) (reviewing

decision to grant or deny motion for a new trial for abuse of discretion).

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Sanders next contends that the prosecutor’s mischaracterization of

the mitigation evidence constituted misconduct.

Sanders presented

evidence that he suffered from brain damage and mental illness. Dr. Stewart,

the defense’s psychiatrist, 364 testified that “Sanders suffers from a very

serious chronic psychotic illness called ‘schizoaffective disorder,’ with a

qualifier being bipolar type.” 365 Dr. Stewart testified that Sanders had

multiple head injuries that resulted in brain damage 366 and impaired

executive functioning. 367 Dr. Ruben Gur, the defense’s neuropsychologist

with expertise in neuroimaging, 368 testified that the imaging showed that

Sanders had brain damage. 369 Dr. Gur testified that several structures in

Sanders’s brain were “abnormally small” 370 and that Sanders’s “speed of

processing is extremely slow.” 371 The government called Dr. Bianchini, a

neuropsychologist, 372 as a witness. Dr. Bianchini testified that although

Sanders “does have some brain dysfunction,” he performed “normally” on

tests for executive functions. 373 The government also called Dr. John

Thompson, a forensic psychiatrist, who testified that although Dr. Stewart

found that Sanders had executive functioning deficits, he “didn’t see that in

364

ROA.2791.

365

ROA.2976.

366

ROA.3045.

367

ROA.3012, 3045.

368

ROA.3111.

369

ROA.3165-67.

370

ROA.3148.

371

ROA.3158.

372

ROA.3228.

373

ROA.3238.

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the testing.” 374 Dr. Thompson further testified that when he interviewed

Sanders he did not observe signs of schizoaffective disorder, bipolar type. 375

Sanders challenges the prosecutor’s argument that Sanders “doesn’t

have executive functioning problems.” 376 This was permissible argument by

the prosecutor because Dr. Bianchini testified that Sanders “performs

normally” on tests with respect to executive function. 377 During closing

argument, a prosecutor may discuss the evidence admitted at trial and

reasonable inferences that can be drawn from the evidence. 378

Sanders also points to the prosecutor’s remarks that Dr. Stewart’s

findings were not supported by any of the other experts. The record shows

that the government’s expert witnesses disagreed with Dr. Stewart’s

diagnoses of schizoaffective disorder with bipolar and impaired executive

functioning. To the extent the prosecutor was referring to the schizoaffective

disorder diagnosis, we have found no other expert testimony agreeing with

Dr. Stewart’s diagnosis. Indeed, as previously set forth, Dr. Thompson, the

government’s psychiatrist, saw no signs of schizoaffective disorder when he

interviewed Sanders and when he reviewed Sanders’s test results.

Accordingly, the prosecutor’s remark that no other expert agreed with Dr.

Stewart’s diagnosis of schizoaffective disorder is proper argument.

With respect to the finding of impaired executive functioning, the

defense expert witness, Dr. Gur, testified that Sanders “performs very well

374

ROA.3318.

375

ROA.3320.

376

ROA.3371.

377

ROA.3238.

378

United States v. Bowen, 818 F.3d 179, 191 (5th Cir. 2016) (per curiam).

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on a task of abstraction and mental flexibility, which is a frontal lobe task.” 379

Dr. Gur had already testified that the frontal lobe involves the executive

function. 380 Dr. Gur further testified that Sanders’s accuracy on the frontal

lobe tests is normal “but his speed of processing is extremely slow.” 381 Dr.

Gur stated that Sanders’s executive functional attention and working

memory is from “a bit over one, up to two and a half standard deviation below

average.” 382

Although Dr. Gur’s testimony is not crystal clear, we

understand it to provide some support for Dr. Stewart’s finding of executive

impairment. It was arguably improper to state that all the experts disagreed

with Dr. Stewart’s finding of impaired executive function.

Nonetheless, we are not convinced the remarks rise to the level of

plain error. During closing argument, the prosecutor stated: “I think as I

recall the testimony—if you don’t recall it the same, go with your

recollection.” 383 Additionally, as previously set forth, the court instructed

the jury that the attorneys’ argument does not constitute evidence. 384

Sanders also argues that the prosecutor improperly urged the jurors to

discount his mitigating evidence. The Supreme Court has made clear that

juries in capital cases must be allowed to consider fully a defendant’s

mitigating evidence. 385 Also, a defendant is not required to establish a nexus

379

ROA.3158.

380

ROA.3122.

381

ROA.3158.

382

ROA.3158.

383

ROA.3366.

384

ROA.3411.

385

Abdul-Kabir v. Quarterman, 550 U.S. 233, 260 (2007).

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between the crime of conviction and the proffered evidence for it to be

considered by the jury. 386

Sanders challenges the following remarks during closing argument,

arguing that the prosecutor was urging the jury to disregard particular

mitigation evidence. After the prosecutor stated that Sanders had proposed

a list of 106 mitigating circumstances on the verdict form, she stated: “[L]et

me suggest to you that simply because they may be factually true statements

does not mean they are actually mitigating as to the defendant.” 387 We reject

the contention that this remark is urging the jurors to disregard the mitigating

evidence. Right after this remark, the prosecutor said: “You need to assess

all of [the mitigating circumstances]. And if the evidence supports them and

you find that they somehow point to some reason why the death penalty is

not appropriate and life is a better sentence, then you need to consider

them.” 388 These remarks were not urging the jurors to ignore the mitigating

evidence; instead, the prosecutor was telling the jurors that they need to

assess all of the mitigating evidence and determine the appropriate penalty.

Sanders makes a similar challenge to the following remark: “So how

is that mitigating for the defendant?” 389 The prosecutor asked that question

after referencing the evidence regarding Sanders’s mother’s difficult

upbringing. Sanders ignores the remarks made right after that question. The

prosecutor states Sanders “didn’t grow up that way.” 390 The prosecutor

then contrasts the relative comforts of Sanders’s upbringing compared to the

386

Tennard v. Dretke, 542 U.S. 274, 287 (2004).

387

ROA.3363.

388

ROA.3363-64.

389

ROA.3364.

390

ROA.3364.

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hardships endured by his mother. These remarks do not urge the jurors to

ignore the mitigation evidence.

Sanders next challenges the following remarks by the prosecutor:

“Yes, he has some processing issues. Yes, he has some language issues.

None of those stopped him from shooting [L.R.] four times.” 391 Again,

because there is no objection, we review this claim for plain error. Sanders

contends that these remarks urged the jurors to disregard the mitigation

evidence unless it provided an excuse for the crime. As previously set forth,

we are to read these remarks in the context of the trial. This remark was

followed by an extended discussion of Sanders’s crime of conviction and

specifically the attention, focus, and concentration he would have needed to

engage in such conduct. 392

Indeed, in these remarks, the prosecutor

specifically referenced the testimony of the government’s expert witness, Dr.

Bianchini. Read in context, it is clear that the prosecutor was demonstrating

that Sanders had a level of executive functioning by pointing to the attention,

focus, and concentration he exhibited during the murder of L.R. Therefore,

the statement constituted permissible argument.

Finally, Sanders complains the prosecutor improperly argued that

L.R. “didn’t deserve” what happened to her and that Sanders deserved

death. 393 Sanders contends that these remarks improperly urged the jurors

to base their decision on passion and prejudice. “Although the prosecution

may not appeal to the jury’s passions and prejudices, the prosecution may

appeal to the jury to act as the conscience of the community.” 394 The

391

ROA.3399.

392

ROA.3399.

393

ROA.3372.

394

Jackson v. Johnson, 194 F.3d 641, 655 (5th Cir. 1999).

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prosecution properly argued from the evidence and Supreme Court

precedent that Sanders deserved death. The Supreme Court has made clear

that a “jury must be allowed not only to consider [mitigating] evidence, or to

have such evidence before it, but to respond to it in a reasoned, moral manner

and to weigh such evidence in its calculus of deciding whether a defendant is

truly deserving of death.” 395 Sanders has failed to show the prosecutor’s

remarks constituted plain error.

Sanders next contends that the FDPA 396 operates in an

unconstitutionally arbitrary and capricious manner—both generally and as

applied to him. 397 Arguably, if the FDPA were unconstitutional, Sanders

might be eligible for a sentence more lenient than a life sentence without

possibility of parole. Therefore, we will proceed to address this issue.

“The constitutionality of a federal statute is a question of law

reviewed de novo.” 398 This court has rejected Sanders’s argument, holding

that the “FDPA provides sufficient safeguards to prevent the arbitrary

imposition of the death penalty.” 399 Our precedent precludes Sanders’s

facial challenge to the FDPA.

With respect to Sanders’s as-applied challenge to the FDPA, he

contends that he received the death penalty while others did not because of

the race of his victims, the admission of unreliable evidence of uncharged

395

Brewer v. Quarterman, 550 U.S. 286, 296 (2007) (emphasis added).

396

18 U.S.C. §§ 3591-98.

397

Sanders Br. at 137.

398

United States v. Robinson, 367 F.3d 278, 290 (5th Cir. 2004).

399

United States v. Webster, 162 F.3d 308, 354 (5th Cir. 1998).

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conduct, and juror confusion. 400 Sanders and L.R. are both white. Sanders’s

statistically based arguments are analogous to those which the Supreme

Court considered and ultimately rejected in McCleskey v. Kemp. 401 In that

case, the Court addressed whether Georgia’s “capital punishment system

[was] arbitrary and capricious in application.” 402 The petitioner pointed to

statistical evidence suggesting racial prejudice impacted capital-sentencing

determinations in the state. 403

The Court ultimately dismissed the

petitioner’s arguments notwithstanding this evidence. It noted that the

statistical evidence did not prove that “race was a factor in [the petitioner’s]

particular case.” 404 Recently, in the context of a selective prosecution claim

based on race discrimination in a capital case, this court reiterated the

Supreme Court’s holding in McCleskey, stating that “statistical evidence

alone does not establish that ‘the decisionmakers in his case acted with

discriminatory purpose.’” 405

Like the petitioner in McCleskey, Sanders’s proffered evidence does

not demonstrate that the factors he identified impacted his jury’s

consideration of his sentence. He merely points to statistical evidence

purporting to show that improper considerations and juror confusion can play

a role in sentencing determinations and posits that these factors explain his

jury’s decision to impose the death sentence. 406 As in McCleskey, Sanders’s

400

Sanders Br. at 148.

401

481 U.S. 279, 308-13 (1987).

402

Id. at 308 (emphasis omitted).

403

Id.

404

Id.

405

Broadnax v. Lumpkin, 987 F.3d 400, 414 (5th Cir. 2021) (emphasis omitted)

(quoting McCleskey, 481 U.S. at 292).

406

Sanders Reply Br. at 49.

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evidence fails to demonstrate the applicable capital-sentencing regime was

arbitrarily and capriciously applied in his case.

Relying on a sampling of capital cases that did not result in a death

sentence, Sanders asserts that there is “no consistent, predictable measure

for determining which defendants will be spared and which condemned.” 407

This argument affords Sanders no relief. The Supreme Court has explained

that “the inherent lack of predictability of jury decisions does not justify their

condemnation. On the contrary, it is the jury’s function to make the difficult

and uniquely human judgments that defy codification and that buil[d]

discretion, equity, and flexibility into a legal system.” 408

Sanders also argues that the FDPA’s “requirements do little to

narrow the eligible pool.” 409 This court has rejected the argument that the

FDPA is unconstitutional because it fails to narrow significantly the class of

offenses to which the death penalty applies. 410

Finally, Sanders also

challenges the relaxed evidentiary standards that apply to the penalty phase

of the trial, but concedes that the argument is foreclosed by our precedent. 411

Sanders’s challenges to the FDPA are without merit.

407

Sanders Br. at 145.

408

McCleskey, 481 U.S. at 311 (alteration in original) (quoting Harry Kalven,

Jr. & Hans Zeisel, The American Jury 498 (1966)).

409

Sanders Br. at 142.

410

United States v. Webster, 162 F.3d 308, 354-55 (5th Cir. 1998).

411

Sanders Br. at 149-50 (citing United States v. Fields, 483 F.3d 313, 337 (5th Cir.

2007)).

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XII

Sanders argues that his death sentences are aberrational and

disproportionately severe. 412 As with other of Sanders’s arguments, it is

unclear whether commutation of his death sentences to life without

possibility of parole mooted this issue.

The government contends that Sanders did not raise this claim in the

district court, and therefore, that we should review it for plain error. 413

Sanders counters that because this argument does not assert error by the

district court, it could not have been preserved below. 414 The Supreme Court

has rejected a similar argument, holding the FDPA “does not explicitly

announce an exception to plain-error review, and a congressional intent to

create such an exception cannot be inferred from the overall scheme.” 415 We

therefore review Sanders’s argument for plain error.

The jury found that Sanders had brain damage and that he would not

be a danger in prison. 416 In light of those two findings, Sanders asks this court

to conduct a proportionality review of his sentence “compared to those

imposed in other federal cases.” 417

This court has explained that a

“[p]roportionality review examines the appropriateness of a sentence for a

particular crime by comparing the gravity of the offense and the severity of

412

Sanders Br. at 153.

413

Government Br. at 119-20.

414

Sanders Br. at 156 n.38.

415

Jones v. United States, 527 U.S. 373, 388-89 (1999); accord United States v.

Aquart, 912 F.3d 1, 30 (2d Cir. 2018); United States v. Lee, 374 F.3d 637, 652-53 (8th Cir.

2004).

416

ROA.1616, 1626.

417

Sanders Br. at 153.

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the penalty with sentencing practices in other prosecutions for similar

offenses.” 418 We have recognized that “[a]lthough the [Supreme] Court has

upheld capital sentencing schemes requiring proportionality review, the

Court has never required such review as constitutionally mandated.” 419

Moreover, this court has recognized that the “FDPA is not so lacking in

other checks on arbitrariness that it fails to pass constitutional muster for lack

of proportionality review.” 420 We decline to conduct a proportionality

review of Sanders’s sentence.

Nonetheless, the FDPA does require this court to “consider whether

the sentence of death was imposed under the influence of passion, prejudice,

or any other arbitrary factor.” 421 Here, every juror considered and made

findings as to each of Sanders’s 106 proposed mitigating factors. 422 Although

the jury unanimously found that Sanders had brain damage, 423 they

unanimously rejected the proposition that brain damage or mental illness

impaired Sanders’s “ability to make a decision or consider alternative

courses of action at the time of the crime.” 424 In fact, the jurors unanimously

found that Sanders did not suffer from any mental illness. 425 The jury did

reject numerous proposed mitigating factors.

For example, the jurors

418

United States v. Jones, 132 F.3d 232, 240 (5th Cir. 1998), aff’d, 527 U.S. 373

419

Id.

420

Id.

421

18 U.S.C. § 3595(c)(1).

422

ROA.1636-50.

423

ROA.1616.

424

ROA.1617.

425

ROA.1616.

(1999).

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rejected the proposition that Sanders was remorseful that he killed L.R. 426

The jurors also rejected the proposition that he was capable of redemption. 427

The jury did not find that his brain damage “decreased [his] ability to

regulate emotions and motivated behavior.” 428

On the other hand, the jury agreed with some of the proposed

mitigating factors.

The jury agreed that “Sanders was helpful to the

management and tenants at Pacific Mini Storage,” where he had been

employed. 429 The jury found that Sanders “is a complicated person who is

capable of good deeds.” 430 The jury found that Sanders’s life had value. 431

We agree with the district court’s opinion that the jury’s findings at the

penalty phase “reveal a thoughtful process” and indicate that it “carefully

sought a punishment befitting the crime.” 432 Importantly, the district court

instructed the jury that when determining the sentence, “you must avoid any

influence of passion, prejudice or undue sympathy. Your deliberations must

be based upon the evidence you have seen and heard . . . and on the law on

which I’ve instructed you.” 433 In light of the jury’s findings and the district

court’s instructions, we conclude that Sanders’s sentence was not imposed

under the influence of passion, prejudice, or any other arbitrary factor.

426

ROA.1615.

427

ROA.1627.

428

ROA.1618.

429

ROA.1625.

430

ROA.1626.

431

ROA.1627.

432

ROA.1548 (district court’s order denying motion to set aside sentencing verdict

based on a claim of improper prosecutorial closing argument).

433

ROA.3432.

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Sanders next argues that the Supreme Court’s holding that the Eighth

Amendment bars execution of the intellectually disabled should also prevent

a death sentence based on his brain damage and mental illness. 434 We first

note that there was no evidence that he was intellectually disabled; in fact,

the evidence demonstrated that Sanders had an I.Q. that was somewhat

above average. 435 Further, the jury unanimously found that Sanders did not

suffer from a mental illness. 436 In any event, this court has rejected the

argument that the Eighth Amendment bars the execution of a mentally ill

person. 437

Finally, with respect to extending the ban on executions to include

individuals with brain damage, this court has stated that such an argument

“is foreclosed by the numerous Fifth Circuit precedents rejecting the

proposition that the Eighth Amendment prohibits execution of those who

have brain problems but are not intellectually disabled.” 438 However, that

precedent does not necessarily control the instant case because it involved

cases reviewed under the deferential standard of review of the AntiTerrorism and Effective Death Penalty Act, 439 and this case comes to us on

direct appeal. Nonetheless, we come to the same conclusion. Sanders

contends there is an emerging “national consensus” that a sentence of death

for individuals with brain damage is disproportionate. 440 Citing a poll,

434

Sanders Br. at 159-62 (citing Atkins v. Virginia, 536 U.S. 304, 318 (2002)).

435

ROA.3253 (showing that Dr. Bianchini testified that Sanders “had very good

intelligence” with an I.Q. score of 115, and the “average is 100”).

436

ROA.1616.

437

Rockwell v. Davis, 853 F.3d 758, 763 (5th Cir. 2017).

438

Shore v. Davis, 845 F.3d 627, 634 (5th Cir. 2017) (per curiam).

439

28 U.S.C. § 2254; Smith v. Davis, 927 F.3d 313, 331 (5th Cir. 2019).

440

Sanders Br. at 161.

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Sanders states that the majority of Americans oppose the death penalty for

persons who are mentally ill or mentally challenged, and he believes those

descriptors “potentially encompass those with brain damage.” 441 He also

relies on the official positions of two professional organizations—the

American Bar Association and the American Psychiatric Association—who

oppose the death penalty for those suffering from brain damage. This

evidence falls short of what the Supreme Court found persuasive when

addressing a similar argument. In Roper v. Simmons, 442 the Supreme Court

held that the Eighth Amendment categorically prohibited sentencing a

defendant to death if he was under the age of eighteen at the time of the

offense. 443 Among other evidence, the Court relied on the fact that thirty

states had previously prohibited the death penalty for juvenile offenders. 444

The Supreme Court also found persuasive the fact that even in states where

juveniles could still be legally sentenced to death, only a few had actually

imposed the penalty in the years leading up to the Court’s decision. 445

Sanders’s proffered evidence fails to demonstrate that a comparative

consensus exists for those defendants suffering from brain damage. Sanders

has failed to show that his sentences were aberrational or disproportionate.

XIII

Finally, Sanders contends that he is entitled to relief under the

cumulative-error doctrine even if his various arguments do not merit relief

441

Sanders Br. at 161.

442

543 U.S. 551 (2005).

443

Id. at 575.

444

Id. at 564.

445

Id. at 564-65.

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individually. 446 We disagree. The cumulative-error doctrine “necessitates

reversal only in rare instances.” 447 As previously discussed, the vast majority

of Sanders’s arguments were unpersuasive, and those that had some merit

did not undermine our confidence in the judgment.

We are likewise

convinced the cumulative effect of any errors that may have occurred did not

“so fatally infect the trial that they violated the trial’s fundamental

fairness.” 448 Sanders’s claim for relief pursuant to the cumulative-error

doctrine is without merit.

We VACATE the conviction and sentence imposed based on Count

Two of the indictment. We otherwise AFFIRM the judgment of the district

court.

446

Sanders Br. at 172-73.

447

United States v. Delgado, 672 F.3d 320, 344 (5th Cir. 2012) (en banc).

448

Id. (quoting United States v. Fields, 483 F.3d 313, 362 (5th Cir. 2007)).

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Andrew S. Oldham, Circuit Judge, concurring:

For no apparent reason, Thomas Steven Sanders shot Suellen Roberts

in the head from point-blank range. He did so in front of her 12-year-old

daughter, L.R.

Then Sanders turned his violence to L.R. According to Sanders himself, the girl “was in hysterics. She was in hysterics.” ROA.2179. Sanders

kidnapped L.R. After holding her for three or four days, Sanders shot L.R. in

the back of the head. But the girl did not die. So Sanders shot her two more

times in the head. But still the girl did not die. So Sanders shot her in the chest.

Yet again, the girl did not die. Finally, Sanders took a homemade knife and

slit the girl’s throat “so violently that the marks were on the bones of her

neck.” ROA.2438. Finally, she died. Sanders dumped L.R.’s body in the

woods of Louisiana, where it started decomposing in the late summer heat.

Hunters eventually found the girl’s corpse weeks later.

A jury of Sanders’s peers convicted him and imposed the death penalty for his sadistic crimes.

On the eve of Joe Biden’s departure from office, however, the White

House 1 decided that Sanders deserved the ultimate act of executive grace:

Sanders’s death sentence was commuted.

Questions have arisen about the flurry of last-minute pardons issued by the Biden

Administration. “Overall, Biden granted 4,245 acts of clemency during his four-year tenure

in the White House. That far exceeds the total of any other president since the beginning

of the 20th century, including Franklin D. Roosevelt, who granted 3,796 such acts during

his 12 years in office.” John Gramlich, Biden Granted More Acts of Clemency Than Any Prior

President, Pew Rsch. Ctr. (Feb. 7, 2025), https://www.pewresearch.org/short-reads/

2025/02/07/biden-granted-more-acts-of-clemency-than-any-prior-president [https://per-

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To understand the nature and purposes of the pardon power, we must

turn to history. As Chief Justice Marshall put it nearly 200 years ago:

[T]his power had been exercised, from time immemorial, by

the executive of that nation whose language is our language,

and to whose judicial institutions ours bear a close resemblance; we adopt their principles respecting the operation and

effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who

would avail himself of it.

United States v. Wilson, 32 U.S. (7 Pet.) 150, 160 (1833).

The history of the pardon power is august. The power’s roots reach

back to Mosaic, Greek, and Roman law. William F. Duker, The President’s

Power to Pardon: A Constitutional History, 18 Wm. & Mary L. Rev. 475,

476 (1977). The pardon prerogative likely first appeared in the Anglo-Saxon

legal system in laws enacted around 700 A.D. during the reign of King Ine of

Wessex. Stanley Grupp, Some Historical Aspects of the Pardon in England, 7

ma.cc/592P-TGS5]. At least one was issued by mistake. See Ethan Fry, Blumenthal: “Someone Dropped the Ball” on Biden Granting CT Accused Killer Adrian Peeler Clemency, Conn.

Post ( Jan. 23, 2025, 1:57 PM), https://www.ctpost.com/news/article/biden-peelerbridgeport-killer-clemency-blumenthal-20048813.php [https://perma.cc/2QR2-UYVA].

Some or all were allegedly effectuated via autopen. See Meredith McGraw & Annie Linskey, Trump Lays Groundwork for Investigating People Pardoned by Biden, Wall St. J. (Mar.

17, 2025, 5:12 PM), https://www.wsj.com/politics/policy/trump-lays-groundwork-for-investigating-people-pardoned-by-biden-73ee33ad [https://perma.cc/26FR-7KFK]; cf. Tim

Hains, The Moment Speaker Mike Johnson Knew Biden Wasn’t “In Charge” Anymore,

RealClearPolitics ( Jan. 19, 2025), https://www.realclearpolitics.com/video/2025/

01/19/when_mike_johnson_knew_joe_biden_wasnt_in_charge_anymore.html [https://

perma.cc/AQT8-D9A7] (Mike Johnson, Speaker of the House of Representatives, stated

that President Biden “genuinely did not know what he had signed” in at least one instance

toward the end of his presidency).

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Am.J. Legal Hist. 51, 53 (1963). One law, for example, provided: “If any

one fight in the king’s house, let him be liable in all his property, and be it in

the king’s doom 2 whether he shall or shall not have life.” 1 Benjamin

Thorpe, Ancient Laws and Institutes of England 46 (1840).

Another similarly gave the king the power to “be merciful” to one who refused to turn in a thief by exempting him from the otherwise prescribed punishment. Id. at 54. During the rule of several subsequent kings, similar laws

were enacted concerning additional offenses. See Duker, supra, at 477. The

strength of the king’s pardon power further increased under William the

Conqueror, who “brought from Normandy the view that clemency was an

exclusive privilege of the king.” See Grupp, supra, at 55. Several centuries

later, in 1535, Parliament formally gave King Henry VIII the “whole and sole

power and authority” to pardon. Duker, supra, at 487 (quoting Act for Continuing Certain Liberties in the Crown, 27 Hen. 8, c. 24, cl. 1 (1535)).

Though broad, the king’s power to pardon was not unlimited. For example, in 1389, Parliament legislated that “no pardon for treason, murder, or

rape, shall be allowed, unless the offence be particularly specified therein;

and particularly in murder it shall be expressed, whether it was committed by

The word “doom” traces to the “earliest known event in Anglo-American legal

history,” King Aethelbert’s promulgation of laws in 602 or 603 A.D. A.W.B. Simpson, The

Laws of Ethelbert, in On the Laws and Customs of England: Essays in

Honor of Samuel E. Thorne 3, 3 (Morris S. Arnold et al. eds., 1981). Aethelbert’s

laws begin: “These are the dooms which Aethelbert established.” Id. at 5. Although

“doom” is the common translation for the word domas, in truth domas “is almost untranslatable.” Ibid. As Brian Simpson explained, the “nearest equivalent is ‘judgments.’” Ibid.

But that calls to mind the modern distinction between legislation and adjudication, a distinction that “was not part of the intellectual stock of ideas of the seventh century.” Ibid.

Instead, the domas were “a set of judgments pronounced by a king (and his council of

elders) who did not think there was any critical difference between” adjudication and legislation. Ibid. (citing Bede, Historia Ecclesiastica Gentis Anglorum 150

(731) (translating cum consilio sapientum as “with the advice of wise men”)).

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lying in wait, assault, or malice prepense.” 4 William Blackstone,

Commentaries *400 (citing 13 Rich. 2, stat. 2, c. 1). As “sir Edward

Coke observe[d],” it “was not the intention of the parliament that the king

should ever pardon murder under these aggravations.” Ibid. Indeed, Parliament “did not conceive it possible that the king would ever excuse an offence

by name, which was attended with such high aggravations.” Ibid. Another

limit on the pardon power was the “general rule, that, wherever it may reasonably be presumed the king is deceived, the pardon is void.” Ibid. The same

is true when “the king was misinformed” because “any suppression of truth,

or suggestion of falshood, in a charter of pardon, will vitiate the whole.” Ibid.

The Framers explicitly “adopt[ed]” the king’s traditional pardon

power into the Constitution. Wilson, 32 U.S. (7 Pet.) at 160. Article II provides that the President “shall have Power to grant Reprieves and Pardons

for Offences against the United States, except in Cases of Impeachment.”

U.S. Const. art. II, § 2, cl. 1. The Founders referred to this power as the

“prerogative of mercy.” E.g., James Iredell, Answers to Mr. Mason’s Objections to the New Constitution (1788), reprinted in Pamphlets on the

Constitution of the United States 333, 354 (Paul Leicester Ford

ed., 1888); see also Ex parte Wells, 59 U.S. (18 How.) 307, 311 (1856) (“A pardon is said by Lord Coke to be a work of mercy . . . .” (citation omitted)).

As in England, the American pardon power appears to encompass at

least five different types of clemency. See Daniel T. Kobil, The Quality of

Mercy Strained: Wresting the Pardoning Power from the King, 69 Tex. L. Rev.

569, 575 (1991) (listing five types). But only two are relevant here. A full pardon “relieve[s] the petitioner from all penalties and disabilities attached to

the offence.” Ex parte Garland, 71 U.S. (4 Wall.) 333, 381 (1867) (emphasis

added). A commutation, on the other hand, was historically considered a kind

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of “conditional pardon.” E.g., Ex parte Wells, 59 U.S. (18 How.) at 308.

Because “the king,” or the President, could “extend his mercy upon what

terms he pleases,” he could “annex to his bounty a condition.” Blackstone, supra, at *401. A common condition offered for a pardon was a lesser

punishment. E.g., Conditional Pardons, 1 Op. Att’ys Gen. 482, 482–83

(1821).

For the Founders, the pardon power had two primary purposes. Each

purpose, in turn, had two specific exemplars.

First and foremost, the Founders thought the pardon power was necessary to secure justice for those convicted of crimes despite being legally or

morally innocent. In the words of Alexander Hamilton, “without an easy

access to exceptions in favour of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.” The Federalist No. 74, at 385 (Alexander Hamilton) (George W. Carey & James McClellan eds., 2001).

Start with legal innocence. Suppose “a man in reality innocent, but

with strong plausible circumstances against him,” was “convicted upon very

slight and insufficient proof.” Iredell, Answers to Mr. Mason’s Objections,

supra, at 353. It would be “unjust and unreasonable to exclude all means of

mitigating punishment” in such a circumstance. 3 Joseph Story,

Commentaries on the Constitution of the United States

§ 1488 (1833). The prerogative of mercy was thus deemed an essential means

of securing justice in this context.

Now consider moral innocence. As Joseph Story explained, sometimes “the law may be broken, and yet the offender be placed in such circumstances, that he will stand, in a great measure, and perhaps wholly, excused

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in moral and general justice, though not in the strictness of the law.” Ibid. In

such a case, a pardon was necessary “to soften the rigour of the general law.”

Blackstone, supra, at *397; accord Lon L. Fuller, The Case of the

Speluncean Explorers, 62 Harv. L. Rev. 616, 619 (1949) (arguing, as Chief

Justice Truepenny, that a pardon was appropriate for those who killed to save

their own lives “to mitigate the rigors of the law.”). In sum, the “man” might

have “offend[ed] against the letter of the law,” but he was “entitle[d] . . . to

mercy.” James Iredell, Address in the North Carolina Ratifying Convention, reprinted in 4 The Founders’ Constitution 17, 17 (Philip B. Kurland

& Ralph Lerner eds., 1987). The pardon was the means of mercy.

The Framers saw a second primary purpose for the pardon power

beyond ensuring justice and mercy to the legally or morally innocent. That

purpose was promoting the public interest. Once again, this purpose had two

core exemplars.

The first was to quell rebellions and preserve peace. “[I]n seasons of

insurrection or rebellion,” Hamilton explained, “there are often critical

moments, when a well-timed offer of pardon to the insurgents or rebels may

restore the tranquility of the commonwealth.” The Federalist No. 74,

supra, at 386. Or as James Iredell put it, with the use of a pardon “at a critical

moment, the President might, perhaps, prevent a civil war” and bring about

“peace.” Iredell, Address in the North Carolina Ratifying Convention, supra, at

18.

As usual, the Founders were quite prescient. In 1795, President Washington used the pardon power to restore peace after the Whiskey Rebellion

in Pennsylvania. Kobil, supra, at 592. Likewise, Abraham Lincoln and

Andrew Johnson used the pardon power during and after the Civil War to

restore national tranquility. Id. at 593.

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The second core way in which the pardon power was meant to further

the public interest was by helping “obtain the testimony of accomplices.” 2

The Records of the Federal Convention of 1787, at 426 (Max

Farrand ed., 1911) (statement of James Wilson). “[I]t is often necessary to

convict a man by means of his accomplices.” Iredell, Address in the North

Carolina Ratifying Convention, supra, at 18. By offering a pardon to less culpable offenders, the President might secure “the evidence of accomplices”

and thereby “bring great offenders to justice.” Ibid.

III

It is hard to see how the Biden Administration’s midnight pardon of

Sanders—or any of the other 36 pardoned murderers—fits with the history

and tradition of the pardon power. Sanders is not legally or morally innocent.

Far from it. Nor did pardoning him serve any public interest, let alone help

quell a rebellion or obtain his testimony in order to convict an even worse

criminal. Sanders acted alone when he murdered Ms. Roberts, when he kidnapped her 12-year-old daughter, when he murdered the girl, and when he

unceremoniously dumped her body in the woods of Louisiana to rot. This

pardon is a stain on the noble prerogative of executive mercy.

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