Jared S. Buszin, Associate

In Mata v. United States, the Second Circuit (Park, Nardini, Menashi) issued a per curiam opinion denying the petitioner’s motion for leave to file a second motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255(h).  Proceeding pro se, Mata argued that his conviction under 18 U.S.C. § 922(g) should be vacated in light of the Supreme Court’s decision in Rehaif v. United States, 139 S. Ct. 2191 (2019), which clarified what the government must prove in order to meet the “knowingly” mens rea requirement of § 922(g).  Consistent with prior decisions issued by the Third and Eleventh Circuits, the Second Circuit held that Rehaif concerned an issue of statutory interpretation and did not announce a new rule of constitutional law.  Accordingly, Mata’s motion did not meet the requirements of 28 U.S.C. § 2255(h).

In United States v. Davis, the Second Circuit (Katzmann, Wesley, Bianco) affirmed the district court’s order granting the defendant’s motion for a reduced sentence under Section 404 of the First Step Act of 2018.  The government had appealed the order, arguing that eligibility for Section 404 relief turns on a defendant’s actual conduct as opposed to the statutory offense for which a defendant was sentenced.  The Court disagreed and issued a decision that brings the Second Circuit in line with at least six other circuit courts that have issued precedential opinions in the last year with similar holdings.  It is reassuring to see the Circuit rule in a way that reinforces the protections offered by the First Step Act, over the government’s objections in this case.

In United States v. Zapatero, the Second Circuit (Hall, Sullivan, Bianco) issued a published opinion concerning a narrow sentencing issue, ruling that a district court may not rely on a Sentencing Guidelines § 5G1.3(b) adjustment made at a defendant’s original sentencing to subsequently reduce the defendant’s sentence, pursuant to 18 U.S.C. § 3582(c)(2), to one that falls below the defendant’s amended Guidelines range.  The decision is based on strict interpretation of the Guidelines, which only permit reductions under Section 3582(c)(2) in fairly narrow circumstances.

On December 6, 2019, the Second Circuit (Calabresi, Pooler, Park) issued a published per curiam decision in United States v. Kosic (Nunez), concerning the defendant-appellant’s motion for in forma pauperis (“IFP”) status in his direct criminal appeal.  The appellant’s motion arose from a district court order denying his IFP motion based on a finding that the appeal would be frivolous pursuant to 28 U.S.C. §1915.  In its published decision, the Second Circuit granted the motion and held that it is proper to consider only the defendant’s financial eligibility—and not the merits—when deciding motions for IFP status and appointment of counsel under the Criminal Justice Act (“CJA”) in a direct criminal appeal.

On September 3, 2019, a divided panel issued a decision in United States v. Wallace (Winter, Pooler, Abrams, by designation) affirming the district court’s denial of Wallace’s suppression motion as well as Wallace’s 15-year mandatory minimum sentence under the Armed Career Criminal Act (“ACCA”).  Judge Pooler wrote an 18-page dissent explaining why she believed Wallace’s suppression motion should have been granted.  The primary issue addressed in the competing opinions was whether the prolonging of a traffic stop was supported by reasonable suspicion.

On April 26, 2019, the Second Circuit issued another decision in Shabazz v. United States (Katzmann, Leval, Berman by designation) and denied Al-Malik Shabazz’s request for rehearing in connection with the Court’s January 4, 2019 decision, which reversed the district court’s decision granting Shabazz’s habeas petition to set aside his sentence imposed under the Armed Career Criminal Act (“ACCA”).  Our prior coverage of that decision can be found here.

On January 31, 2019, the Second Circuit issued a per curiam decision in United States v. Thrower (Wesley, Chin, and Cote, by designation) reversing a 2017 judgment from the Eastern District of New York that reduced the defendant’s sentence from 180 months to 120 months, which resulted in the defendant’s immediate release.  The district court issued that order after concluding that Thrower’s prior New York convictions for robbery in the third degree and attempted robbery in the third degree do not qualify as predicate “violent felonies” under the Armed Career Criminal Act (“ACCA”).  The Second Circuit concluded that those determinations were incorrect, vacated the district court’s judgment, and remanded with instructions that the district court reinstate Thrower’s original mandatory 180-month sentence.

In a brief decision issued on Tuesday, July 31, in United States v. Green, the Second Circuit (Cabranes, Carney, Goldberg by designation) vacated in part a judgment ordering the defendant to pay restitution for the theft of government property that was stolen outside the applicable statute of limitations.  In doing so, the Court rejected the government’s arguments that the defendant had (i) waived her right to appeal in her plea agreement, and (ii) consented in her plea agreement to pay restitution for property stolen outside the applicable limitations period.  Having disposed of these contentions, the Court rejected the government’s argument that the underlying theft was a “continuing offense” that would permit the government to obtain restitution for amounts stolen both within and outside of the limitations period.

In United States v. Tigano, No. 15-3073 (Winter, Walker, Pooler), the Second Circuit issued a short order reversing the conviction of Joseph Tigano, III and dismissing the indictment with prejudice.  The Court noted that a full opinion in the case would be forthcoming.  Gary Stein, a former chief appellate attorney in the criminal division of the U.S. Attorney’s Office for the Southern District of New York, and now in private practice, represented Tigano pursuant to a court appointment.

On Monday, September 11, the Second Circuit issued a published opinion in United States v. Jones, No. 15-1518 (Walker, Calabresi, Hall), a case with a complicated procedural history in which the Court affirmed a defendant’s sentence as a career offender under the now-removed residual clause of the Career Offender Sentencing Guideline.  The decision was accompanied by a concurrence authored by Judge Calabresi and joined by Judge Hall, which upheld the sentence while calling the result “unjust” and “close to absurd.”  We have reported on this case before, when the Circuit reversed and remanded the sentence; subsequent to our earlier blog post the case was re-opened for additional argument, and this week’s decision now affirms.

On February 16, 2017, the Second Circuit (Leval, Calabresi, Carney) issued a summary order in United States v. Lopez, No. 16-1019, vacating and remanding for reconsideration the district court’s denial of the appellant’s motion for a sentence reduction under 18 U.S.C. § 3582(c)(2) based on a recent change to the United States Sentencing Guidelines.  The Second Circuit has recently issued several summary orders reversing similar denials.  (See our prior coverage here.)