Second Circuit Criminal Law Blog

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The Second Circuit Criminal Law Blog is your place to follow the criminal law decisions rendered by the U.S. Court of Appeals for the Second Circuit.  With a rich 225-year history of legendary judges like Learned Hand and Henry Friendly, the Second Circuit has long been known for writing important and thoughtful opinions on many subjects, including the criminal law.  We review every published criminal law opinion handed down by the Second Circuit in order to provide you with a summary of the holding, an assessment of the key legal issues, and practice pointers based on the Court’s ruling.  Our focus is on white-collar criminal cases and matters relating to internal investigations.  Our blog is written by a team of experienced attorneys, including many former law clerks for the Second Circuit and other federal courts.  The blog’s editor in chief is a former Deputy Chief Appellate Attorney in the U.S. Attorney’s Office for the Southern District of New York who has appeared in more than 100 Second Circuit criminal appeals.

Violation of supervised release sentences must be reasonable

On February 9, 2018, the Second Circuit issued a summary order vacating a sentence imposed for a violation of supervised release.  United States v. Kalaba, 17-328, involved a defendant who had been convicted for credit card theft and who was sentenced to 70 months’ imprisonment.  After his time in prison concluded, he began a three-year term of supervised release.  Before his supervised release term ended, Kalaba was arrested and indicted with multiple narcotics offenses, for which he was sentenced to 84 months’ imprisonment, well below the 240 month sentence recommended by the U.S. Probation Office. 

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Lengthy summary order affirms an order of restitution

In a 12-page summary order issued on February 9, 2018, the Second Circuit affirmed an order of restitution in United States v. Quatrella, 17-1786.  The order is interesting primarily because it addresses the question of when a victim of an offense is not really a victim but rather a fellow participant in the criminal scheme.  The rule in the Circuit is clear:  no order of restitution should be granted that has the effect of treating a coconspirator as a victim.  At the same time, a victim may not be denied restitution simply because the victim had greedy or dishonest motives, so long as the victim’s intentions were not in pari materia with the defendant’s.

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Acquitted conduct still can be used at sentencing

In a short summary order issued on February 9, 2018, in the case of United States v. Muir, 17-150, the Second Circuit affirmed a sentence and reminded everyone that nothing about ApprendiBooker and their progeny changes the rule that existed even prior to the Sentencing Reform Act:  uncharged and acquitted conduct can be relied upon by the district court at sentencing.  This is not a violation of either the Due Process Clause or the Double Jeopardy Clause of the Fifth Amendment, nor does it violate the Sixth Amendment’s guarantee of the right to trial by jury.  So long as the court finds that the relevant facts are proved by a preponderance of the evidence and do not increase either the statutory minimum or maximum sentence, there is no violation of law.

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Ganek v. Leibowitz and a Proposal to Reform Search Warrant Procedure

In Ganek v. Leibowitz, No. 16-1463, 2017 U.S. App. LEXIS 20226 (2d Cir. Oct. 17, 2017), the U.S. Court of Appeals for the Second Circuit recently reversed a district court’s determination that federal prosecutors and agents were not entitled to qualified immunity from plaintiffs’ Bivens claims for money damages for violations of the Fourth and Fifth Amendments in procuring and executing a search warrant.

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Federal Agent’s Misrepresentation in LG Search Warrant Affidavit Insufficient to Clear Qualified Immunity Hurdle

In Ganek v. Leibowitz, No. 16-1463 (2d Cir. Oct. 17, 2017) (Raggi, Chin, Carney), the Second Circuit reversed and remanded a district court’s determination that federal law enforcement authorities were not entitled to qualified immunity from plaintiff’s Bivens claims for money damages for violations of the Fourth and Fifth Amendment in procuring and executing a search warrant.

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Second Circuit Holds that District Court Orders Determining Restitution Credits are Final, Appealable Orders

In United States v. Yalincak, No. 11-5446 (2nd Cir. Apr. 10, 2017) (Calabresi, Raggi, Lynch), the Second Circuit addressed a complicated issue of appellate procedure in the course of a decision on the law of restitution.  Specifically, the Court weighed in on when a district court’s order crediting a defendant funds against his restitution obligations becomes a final, appealable order that cannot be revisited by the district court.

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Second Circuit Parses Distinction Between “Based on” and “Applicable to” in Context of Sentence Reductions for Retroactive Amendments to Sentencing Guidelines

In United States v. Leonard, No. 15-22-32-cr (December 14, 2016) (Raggi, Chin, Droney), the Second Circuit vacated and remanded an order finding a defendant ineligible for a sentence reduction based on a retroactive amendment to the Sentencing Guidelines under 18 U.S.C. § 3852(c)(2). 

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Second Circuit Clarifies That Statutory Maximum Takes the Place of the Guidelines Range in Remand of Child Pornography Sentence

In United States v. Bennett, 15-0024-cr (October 6, 2016, amended October 7, 2016) (Walker, Calabresi, Hall), the Court remanded for resentencing to make clear that under U.S.S.G. § 5G1.1(a), where the statutory maximum falls below what would otherwise be the Guidelines range, the statutory maximum becomes the Guidelines sentence.  

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Sentence Reduction to be “Based On” Most Recent Sentencing Range Applied to Defendant, Not Original Range in Effect at Initial Sentencing.

In United States v. Derry, No. 15-1829 (June 2, 2016) (RSP, BDP, DAL), the Second Circuit confronted a sentencing issue which has garnered increased attention in light of multiple recent amendments to the U.S. Sentencing Guidelines to reduce the length of prison sentences associated with certain drug offenses:  When a defendant is sentenced under one version of the Guidelines and has his sentence reduced under 18 U.S.C. § 3582(c)(2) when his “sentencing range . . . has been subsequently lowered by the Sentencing Commission,” can he receive yet another reduction based on another subsequent amendment to the Guidelines which results in a lower range than was applied at the original sentencing but has no effect on the range that was applied at resentencing?  The short answer:  no.

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No Fourth Amendment Violation Where Subject of Valid Arrest Warrant is Arrested While in Residence of Third Party

In United States v. Bohannon, No. 14-4679 (RR, RCW, CFD), the Second Circuit held that when the subject of an arrest warrant is arrested at a third party’s residence where he is a guest, his Fourth Amendment privacy rights are satisfied so long as the arresting officers possess (1) a valid arrest warrant for the subject, and (2) reason to believe that the subject is on the premises.  In so doing, the Court declined to require law enforcement officials to take the additional step of obtaining a search warrant for the third party’s residence in order to arrest the suspect guest.  This was an interlocutory appeal after the district court suppressed evidence seized incident to the defendant’s arrest.  While the panel affirmed the district court’s legal analysis on an open question of search-and-seizure law, it reversed the suppression order after a close analysis of the relevant facts.

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