United States v. Broussard Petition for Rehearing DENIED

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 17-30298
UNITED STATES OF AMERICA, Plaintiff - Appellee

v.

BRET BROUSSARD, Defendant - Appellant

Appeal from the United States District Court
for the Western District of Louisiana

USDC No. 6:16-CR-36

ON PETITION FOR REHEARING EN BANC

Before REAVLEY, ELROD, and SOUTHWICK, Circuit Judges.

PER CURIAM:

Bret Broussard filed a Petition for Rehearing En Banc. He argued that
the panel erred in holding that his guilty plea waived his later discovered
argument that his conviction was void ab initio under the Federal Vacancies
Reform Act. After his petition was filed, the Supreme Court restated its earlier
holdings that a guilty plea does not bar a defendant from appealing the
constitutionality of the statute of conviction. See Class v. United States, 138
S.Ct. 798, 803 (2018). We requested supplemental letter briefing from the

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parties concerning the effect of Class on Broussard’s argument that his
conviction was void based on the Vacancies Act.

We conclude that Class has no effect on the panel holding that Broussard
waived his Vacancies Act argument when he pled guilty to violating 18 U.S.C.
§ 242. Broussard’s counsel acknowledges that Class is “not directly on point,”
which was a proper admission. Unlike Class, who argued the Constitution
prohibited criminalizing the conduct for which he had pled guilty, Broussard
does not challenge the constitutionality of Section 242. He argues instead that
the statutory authority of the specific governmental official authorizing his
prosecution did not exist because of the operation of the Vacancies Act. That
argument, which seeks to extract from a statute based on the Appointments
Clause a constitutional defect to his conviction, is instead an argument that
the specific terms of a statute were not followed. Such an argument is not one
preserved by the doctrine discussed most recently in Class.

No member of the panel nor judge in regular active service of the court
having requested that the court be polled on rehearing, the Petition for
Rehearing En Banc is DENIED. We recast that Petition as one for panel
rehearing. The Petition as so cast is DENIED.