As Second Circuit Remands on Procedural Reasonableness Grounds, Judge Calabresi Calls for More Searching Review of Obstruction of Justice Sentences
In United States v. Pugh, No. 17-1889 (2d Cir. Dec. 10, 2019, as amended) (Calabresi, Droney, Underhill, by designation), the Second Circuit affirmed a defendant’s convictions for attempting to provide material support to a foreign terrorist organization and obstruction of justice but vacated the resulting sentence on procedural reasonableness grounds.
In United States v. Moran, the Second Circuit (Calabresi, Cabranes, Chin) affirmed the sentence of Lamont Moran, who was convicted of conspiracy to distribute heroin. On appeal, Moran challenged the application of two sentencing enhancements, one for acting as a supervisor in the course of his criminal activities (the “Aggravating Role Enhancement” of U.S.S.G. § 3B1.1) and one for engaging in criminal activities as his livelihood (the “Criminal Livelihood Enhancement” of U.S.S.G. § 4B1.3). In affirming, the Court clarified several elements of the Criminal Livelihood Enhancement. While the Guidelines are only advisory, they remain an important part of federal criminal sentencing, although as we will see here, the particular Guidelines enhancement addressed by the panel may not have made a difference in the sentence imposed.
In United States v. Brown (Newman, Hall, and Chin), the Second Circuit addressed two related questions. First, the Circuit held that Dean v. United States, 137 S. Ct. 1170 (2017), abrogated prior circuit precedent in United States v. Chavez, 549 F.3d 119 (2d Cir. 2008), thereby allowing district courts to consider the severity of applicable mandatory consecutive sentences in determining the sentences for underlying predicate offenses. And, second, the panel concluded that the appropriate remedy under the facts presented was remand for resentencing, rather than merely for clarification.
In United States v. Ryan, 17-3919-cr (Jacobs, Lohier, Carney), the Second Circuit affirmed a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for using a firearm in connection with another felony offense. Appellant Maurice Wood, along with co-defendant Jahkeem Ryan, sold heroin to a confidential informant on four occasions. In connection with the third sale only, Wood agreed to sell the CI a Smith and Wesson AR-15 rifle and a Mossberg shotgun, along with heroin. Wood did not, however, have the firearms with him at the time of the sale, and instead gave the CI additional heroin.
Circuit Affirms Sentence Enhancement for Child Porn but Remands as to Conditions of Supervised Release
The Second Circuit (Walker, Cabranes, Sack) issued a per curiam decision in United States v. Bleau, 18-cr-1574 affirming a sentence based on a conviction for receiving and possessing child pornography, but remanding for further consideration of whether to impose a particular special condition of supervised release.
Circuit Rejects Request for Rehearing After Reinstating Defendant’s Original Sentence Incorporating 15-Year Mandatory Minimum Pursuant to the ACCA
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.
Second Circuit Rejects Sentence Based on Government’s Dramatic Shift From its Pre-Plea Pimentel Estimate
In United States v. Walker, 17-1896-cr (Jacobs, Calabresi, and Rakoff, by designation) (April 4, 2019), the Second Circuit held that the Government breached its plea agreement with the defendant by advocating for a term of imprisonment that was substantially higher than the Government’s initial sentencing estimate in the plea agreement. In support of the increased sentence, the Government pointed only to information known to the Government at the time of the plea. The decision addresses so-called “Pimentel estimates” used in the Eastern District of New York, in which the Government provides the defendant with pre-sentencing notice of its calculation of the applicable Sentencing Guidelines range in a plea agreement, while cautioning that this estimate may change in the future. The panel held that, at least on these facts, the defendant was entitled to rely on the Government’s Pimentel estimate despite the cautionary language and, accordingly, the Government unlawfully changed its position based on information known from the outset. As a result, the case will be remanded for resentencing to a new district judge.
The Second Circuit (Leval, Lynch, Droney) issued a decision reversing a mandatory life sentence, finding plain error because the district court failed to apply the categorical approach when considering whether the defendant’s prior conviction qualified for a sentencing enhancement. The case, United States of America v. Jay Kroll, 16-4310-cr, is another example of the Second Circuit applying the categorical approach, this time to 18 U.S.C. § 3559(e) rather than to the Armed Career Criminal Act. Section 3559(e) provides for mandatory life imprisonment when the defendant is a convicted of a child exploitation offense and has a prior sex conviction.
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.
Circuit Reverses Internet Ban Condition of Supervised Release As Substantively Unreasonable And An Excessive Limitation on Liberty, Not Reasonably Related To The Offense
In United States v. Eaglin, the Second Circuit (Cabranes, Carney, and Vilardo, by designation) considered and rejected two conditions of supervised release: a complete ban on access to the Internet and a similarly broad ban on the possession of legal adult pornography. The first portion of the Court’s ruling is part of a broader trend that recognizes the centrality of the Internet to our modern world; it is essential for participation in legal activities and a blanket prohibition on its use must be supported by a more compelling record than existed here.
In Shabazz v. United States, the Second Circuit (Katzmann, Leval, Berman by designation) again addressed the meaning of “violent felony” under the Armed Career Criminal Act (“ACCA”), this time under its “force clause.” As readers of this blog will recall, ACCA has been the subject of many appeals during the past year. See Jacqueline L. Bonneau & Harry Sandick, The Second Circuit Counts to Three: How One Defendant Became a Career Criminal Over the Course of an Hour (Apr. 2, 2018); Joshua Kipnees & Harry Sandick, In Split Decision, Court Again Applies Castleman To Interpret the “Force Clause” of the Armed Career Criminal Act (July 18, 2018); D. Brandon Trice & Harry Sandick, Court Regrets Allowing Successive 2255 Petition in Massey v. United States (July 16, 2018). At issue in this case was whether Shabazz’s convictions for first and second-degree robbery under Connecticut law constitute violent felonies. The Circuit held that all convictions for robbery in Connecticut inherently involve the use or threatened use of violent force, and therefore reversed the District Court’s grant of Shabazz’s habeas petition. Interestingly, the Court based its holding not on an interpretation of the elements of robbery by the Connecticut Supreme Court, but on the inherent danger of violent force associated with the act of robbery. Given the breadth of this holding, any robbery offense that is similar to the common law definition now likely qualifies as an ACCA predicate offense in the Second Circuit, perhaps cutting off future appeals arising out of convictions for robbery in other jurisdictions.
The Second Circuit has once again confronted the issue of what is a “controlled substance” for purposes of sentencing enhancements under the Guidelines. Earlier this year, the Second Circuit held that the phrase “controlled substance” in U.S.S.G. § 2K2.1(a)(2)—a section that enhances the guidelines sentence for a felon in possession of a firearm previously convicted of two felonies for either a crime of violence or a “controlled substance offense”—refers “exclusively to those substances in the [federal Controlled Substances Act (“CSA”)].” United States v. Townsend, 897 F.3d 66, 75(2d Cir. 2018). This meant that not all state law drug offenses were suitable to be used as sentencing enhancements. Now, in United States v. Guerrero, the Circuit held that the phrase “controlled substance offense” construed in Townsend has the same meaning as the term “felony drug trafficking offense” found in Section 2L1.2(b)(1)(B) of the 2014 Sentencing Guidelines, which is used for illegal reentry offenses. United States v. Guerrero, No. 17-cv-851 (2d Cir. Dec. 10, 2018).
In United States v. Lutchman, No. 17-291 (2d Cir. Dec. 6, 2018) (Newman, Jacobs, Pooler), the Second Circuit exercised appellate jurisdiction over defendant’s challenge to his sentence, even though his plea agreement contained an appellate waiver. The Court concluded that the defendant’s appellate waiver in his plea agreement was not supported by consideration, and thus did not bar defendant’s challenge to his sentence on appeal. The Court addressed defendant’s arguments on the merits, affirming defendant’s sentence.
In a short summary order issued in United States v. Levy, the Second Circuit (Hall, Lynch, and Kuntz, D.J.) struck a condition of supervised release that delegated to the United States Probation Department the authority to decide whether to impose a curfew on the defendant. This condition was discussed briefly at sentencing, with the district court advising the defendant as follows: “They tell you you have to stay home at a certain hour or curfew, you have to obey. You understand?” The witness answered in the affirmative, and defense counsel did not object.
Despite Recent Supreme Court Precedent, and In A Departure From The “Categorical Approach,” Circuit Affirms Conviction Under Section 924(c)
In United States v. Barrett, the Second Circuit (Winter, Raggi, Droney) rejected a defendant’s argument that his conviction under Title 18, United States Code, Section 924(c), for using firearms in the commission of a violent crime, should be reversed based on the recent Supreme Court decisions in Sessions v. Dimaya, 138 S. Ct. 1204 (2018) and Johnson v. United States, 135 S. Ct. 2551 (2015). Barrett admitted on appeal that the evidence showed that he was a member of a violent robbery conspiracy but still contended that the firearms counts could not be upheld because the underlying Hobbs Act predicates did not categorically fall within the definition of a crime of violence in Section 924(c)(3). While Dimaya and Johnson have changed how courts must construe Section 924(c)(3), those precedents did not lead the Court to reverse Barrett’s conviction, leaving in place his 90-year sentence. This is a major decision for those who practice in the violent crimes area and given the novelty of the issues the decision covers, it seems likely to be the subject of further review, perhaps by the Supreme Court.
In United States v. Spoor, the Second Circuit (Cabranes, Carney, and District Judge Caproni) affirmed a conviction for production and possession of child pornography. In a decision by Judge Caproni, the Court rejected a number of arguments made by the defense.
Second Circuit Rejects “Miscarriage of Justice” Challenge to Sentence Based on Vacated Underlying Conviction, but Declines to Establish Categorical Rule
In United States v. Hoskins, the Court (Hall, Jacobs, Raggi) rejected a collateral challenge to a sentence where an underlying predicate offense was vacated based on procedural error.
In a short per curiam opinion in United States v. Lobo (Parker, Hall, Lohier), the Second Circuit affirmed the imposition of a Guidelines enhancement based on the importation of a controlled substance into the United States.
Second Circuit: In Truth, A Polygraph Test Supervised Release Condition Can’t Be Added After Sentencing
In United States v. Washington, the Second Circuit (Cabranes and Pooler Circuit Judges, and Oetken, J., by designation) examined a discrepancy between the terms of sentence that the District Court pronounced at the sentencing hearing and the terms of the sentence that the District Court actually entered in its written judgment.
Circuit Determines that Attempted Robbery Under New York Law Constitutes a “Crime of Violence” Pursuant to 2014 Federal Sentencing Guidelines
In United States v. Pereira-Gomez, a panel of the Second Circuit (Cabranes, Carney, Caproni, D.J.) issued an opinion analyzing whether attempted robbery under New York law qualifies as a “crime of violence” for enhancement purposes under Section 2L1.2 of the November 2014 United States Sentencing Guidelines. Engaging in a meticulous exercise in statutory interpretation, the panel concluded that while the offense is not specifically enumerated in the Guidelines’ definition of “crime of violence,” it does fall within the residual “force clause” of the relevant Guidelines application note, thereby resulting in a substantial prior offense enhancement to the applicable sentencing range. This case demonstrates the difficulties that courts and litigators experience in interpreting sentencing enhancement provisions that are based on the categorical nature of a prior conviction.
In a per curiam decision issued on July 27, 2018, the Second Circuit affirmed a $10 million fine imposed on Morris Zukerman as part of a sentence for tax evasion in United States v. Zukerman, No. 17-948 (Katzmann, Kearse, Pooler). The Court summarized its reason for affirming the fine, which was well above the $250,000 Guidelines ceiling, by writing that “Zukerman, a very wealthy man who has repeatedly and brazenly committed sophisticated tax fraud—a rarely caught and more rarely punished offense that undercuts the functioning of state and federal governments—ought to pay a fine hefty enough to take any financial benefit out of his crimes and to give pause to others who might be tempted to commit similar crimes.” While tax cases often involve downward variances to a non-incarceratory sentence, this case involved a district judge’s strongly held belief that the high fine was important to the purposes of sentencing and that it merited an upward variance. The Circuit agreed.
Human Chorionic Gonadotropin is a hormone produced during pregnancy that is prescribed as part of some fertility treatments and, less legitimately, sold as a dieting aid. In New York, it is considered a controlled substance, but it’s not listed on the federal controlled substance schedule. In United States v. Townsend, the Second Circuit (Cabranes, Carney, Lawrence Vilardo, D.J.) faced a defendant with a prior conviction for possession of HCG, and considered whether his base offense level should be increased based on a prior conviction for an “offense under federal or state law . . . that prohibits . . . distribution . . . of a controlled substance.” USSG § 2K2.1(a). Applying a presumption that the Guidelines refer to federal law unless they explicitly incorporate state law, the panel said no: because HCG is not banned on the federal level, its possession is not an offense for possession of a “controlled substance” for sentencing purposes.
The Second Circuit issued an amended opinion in United States v. Smith (Cabranes, Winter, Restani by designation). Both the original decision, which we covered on the blog earlier this year and the amended decision held that the defendant was subject to an enhanced Guidelines range as a result of having committed the New York offense of robbery in the second degree. This crime constituted a crime of violence within the meaning of the residual clause of Sentencing Guidelines Section 4B1.2(a)(2), which was in effect when Smith was sentenced on October 1, 2015.
In United States v. Hernandez, 16-2765, the Second Circuit (Kearse, Cabranes, Lohier) affirmed the conviction of a member of La Mara Salvatrucha (MS-13), a street gang that operates in certain parts of the country, arising out of an initiation shooting in Brentwood.
In Split Decision, Court Again Applies Castleman To Interpret the “Force Clause” of the Armed Career Criminal Act
In Villanueva v. United States, the Second Circuit held by a 2-1 vote (Newman and Leval, with Pooler dissenting) that a conviction for first degree assault under Connecticut law qualifies as a violent felony under the Armed Career Criminal Act of 1984 (“ACCA”). The question before the Court was whether the Connecticut statute, analyzed under the “modified categorical approach,” is a violent felony that requires the use of physical force. The Court reversed the district court’s decision to grant the petition under Section 2255 and remanded the case for resentencing.
On July 11, 2018, the Court of Appeals issued a short per curiam opinion (Wesley, Chin, Furman D.J. by designation) in Massey v. United States, affirming the sentence imposed on an individual who was convicted of possession of a firearm after a felony conviction pursuant to 18 U.S.C. § 922(g). Massey had committed three prior felonies in New York: third-degree robbery, second-degree assault, and second-degree attempted assault. Each of these was deemed a crime of violence under the “force clause” of the Armed Career Criminal Act (“ACCA,” codified at 18 U.S.C. § 924(e)). The question presented to the Court of Appeals was whether Massey’s sentence pursuant to the ACCA should be affirmed in light of the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551, 2563 (2015) (Johnson II), holding that the “residual clause” of the ACCA was unconstitutionally vague.
Circuit Holds That Pending State Counts Qualify as “Anticipated” Sentence for Purposes of Sentencing Guidelines on Concurrent Sentencing
Is a term of imprisonment “anticipated” if charges are pending but the defendant has not yet pled or been found guilty? In a per curiam decision, United States v. Olmeda, No. 15-3449 (Katzmann, Leval, and District Judge Carter by designation) (June 22, 2018), the Circuit addressed whether a defendant facing pending state charges is subject to an “anticipated” sentence – which, under Section 5G1.3(c) of the Sentencing Guidelines, would require his federal sentence to run concurrently with any state sentence later imposed. Upon reviewing the relevant legislative history and case law, the Circuit determined that a state sentence is sufficiently anticipated for federal sentencing purposes even when the defendant's guilt has not yet been established in state court. This decision will make sentences marginally shorter for defendants who are in the unfortunate position of being prosecuted in both state and federal court at the same time.
Circuit Vacates Child Pornography Sentence For Second Time, Citing District Court’s Failure to Follow Circuit’s Mandate
On June 19, 2018, in a split decision in United States v. Sawyer, No. 15-2276 (Jacobs, Pooler, Crawford) the Circuit issued a firm rebuke of a District Court judge who – per the Circuit’s mandate – reduced the defendant’s sentence on remand, but did so without curing certain deficiencies the Circuit had identified as making the sentence substantively unreasonable. The majority opinion makes clear that when the Circuit issues a mandate on remand, the district court is not at liberty to ignore it – even if the district court can achieve the same outcome (here, a reduced sentence) through different means. As the dissent (Jacobs, J.) observes, however, the holding yields the anomalous result whereby the District Court may have remedied the substantive unreasonableness of the initial sentence on remand, but because it did so for the wrong reasons – i.e., by expressly declining to link the reduction to the two variables identified in the mandate – the sentence could not stand.
No Shortcuts: District Court Must Calculate Guidelines Range Before Ruling on Sentencing Reduction Motion
In United States v. Brooks, the Court (Leval, Pooler, Hall) reiterated that district courts are required to calculate the applicable Sentencing Guidelines range when faced with a § 3582(c)(2) motion for a sentence reduction, and suggested that the failure to do so will rarely be harmless.
Court Allows Wife of Criminal Defendant to Amend Challenge to Forfeiture of Allegedly Commingled Assets on Due Process Grounds
In United States v. Daugerdas, the Court (Walker, Lynch, Chin) offered a lifeline to the wife of a defendant convicted of tax fraud, who sought to assert a third-party interest in funds that the Second Circuit had previously determined were forfeitable to the government as proceeds of the defendant’s crimes. The U.S. District Court for the Southern District of New York concluded that petitioner Eleanor Daugerdas failed to state a claim that she was entitled to retain funds that her husband, defendant Paul Daugerdas, had gratuitously transferred to her. She sought to argue that the tainted funds had been commingled with legitimately earned funds prior to their transfer and therefore could not easily be traced back to Paul’s crimes. But the question of whether the seized funds arose from Paul’s criminal activity had been decided in the affirmative by the district court as part of Paul’s sentencing. As a result, the district court held that Eleanor could not relitigate the issue of whether those funds should be characterized not as criminal proceeds but as substitute assets, which would require the government to seek forfeiture of other property belonging to Paul.
Sentencing Court Must Provide Sufficient Reasons for Sentence Imposed to Determine if Factual Error Influenced Sentence
In United States v. Derek Armstrong, 18-368, the Second Circuit (Sack, Raggi, Kaplan) issued a summary order vacating a three-month prison sentence imposed on the defendant by the U.S. District Court for the Eastern District of New York for violating probation by failing to report for random drug testing. The defendant had previously been sentenced in 2015 to three years’ probation for filing false tax returns and it was his violation of that probation that resulted in the challenged sentence. On appeal, he argued that his prison sentence was procedurally unreasonable because it was based on an erroneous fact asserted by the government at sentencing: that the defendant had failed to pay any of the back-tax payments ordered by the district court.
On May 2, 2018, the Second Circuit held in United States v. Jamaal Brooks (Parker, Lynch, Chin) (per curium) that the district court erred in imposing a sentence of lifetime supervised release on a defendant who had violated prior terms of supervised release due to continued drug use and failure to report to scheduled drug testing. The Court stressed that while the sentencing court has substantial discretion in fashioning an appropriate sentence, a term of supervised release is nonetheless substantially unreasonable if it is improperly justified by retribution and deviates significantly from the sentence given to similarly-situated violators. Supervised release imposes real burdens on both defendants and the justice system, and this decision is a reminder that, as in other aspects of federal sentencing, the punishment should fit the crime.
Missing Texts, Unfair Trial: Second Circuit Remands Case for Possible Brady Violations and Sentencing Irregularities
In United States v. Djibo, the Second Circuit vacated and remanded a judgment of conviction entered in the Eastern District of New York (Johnson, J.) following the defendant’s trial on charges arising from an international heroin-smuggling conspiracy. In a summary order by Judges Sack, Hall, and Droney, the Circuit concluded that errors had affected both the trial and the sentencing, and reassigned the case to a new judge on remand.
The Second Circuit Counts to Three: How One Defendant Became a Career Criminal Over the Course of an Hour
In United States v. Bordeaux, 17-486-cr (Cabranes, Raggi, Vilardo), the Second Circuit held that the defendant’s three prior Connecticut state convictions for first-degree robbery—all of which took place during a single night—satisfied the requirements for conviction under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). The opinion confirms that a conviction under Connecticut’s first-degree robbery statute constitutes a “violent felony” within the meaning of the ACCA and continues the majority approach to interpreting the “different occasions” requirement of the Act—which places the greatest emphasis on whether a defendant had time to contemplate his actions between the incidents giving rise to his prior convictions. Much is at stake for the defendant: a conviction under Section 924(e) carries with it a mandatory consecutive 15-year term of imprisonment.
The Price of a Drug Conspiracy Conviction: Second Circuit Remands $5 Million Forfeiture Order in Light of Recent Supreme Court Precedent
In United States v. Papas (17-cr-1591-cr), the Second Circuit remanded by summary order a $5 million forfeiture order entered in the Southern District of New York (Daniels, J.) after the defendant pleaded guilty to conspiracy to distribute marijuana. Judges Cabranes, Carney, and Caproni (sitting by designation) were on the panel.
In United States v. Dove, 14-1150-cr, the Second Circuit (Walker, Pooler, Chin) upheld a drug conspiracy conviction against claims that the government improperly shifted its case away from the broader conspiracy charge in the indictment. The defendant alleged that this amounted to a constructive amendment or a prejudicial variance, in violation of the Fifth Amendment Grand Jury Clause. The 2-1 decision, with Judge Chin dissenting, raises thorny questions about the evidence necessary to prove a defendant’s awareness of his role in a larger conspiracy and the government’s ability to thwart a lack-of-awareness defense through its selection of evidence at trial. Although the Court affirmed, the extended discussion and the dissent may be useful to future litigants who wish to invoke these defenses.
In United States v. Smith, No. 15-3313-cr, the Second Circuit (Winter, Cabranes, Restani, sitting by designation) held that New York second-degree robbery is a “crime of violence” under § 4B1.2(a) of the 2014 United States Sentencing Guidelines. As the panel acknowledged, Smith follows directly from United States v. Jones (2d Cir. Oct. 5, 2017), covered here and here, which held that New York first-degree robbery is a crime of violence under the same Guidelines provision because the official commentary lists robbery as a crime of violence, and New York generically defines first-degree robbery to include as an element the taking of property from another person, or person’s immediate presence, by force or intimidation. The panel reasoned that the rationale of Jones was “directly applicable” because New York second-degree robbery has the same element involving the use of force or intimidation.
Second Circuit Reminds Courts They Must Advise Defendants of the Immigration Consequences of Guilty Pleas
In United States v. Gonzales, 16-4318 (March 13, 2018), the Second Circuit (Sack, Parker, Carney) in a per curiam order vacated the conviction of a defendant who had pled guilty without being informed that he was likely to be deported at the end of his sentence. On June 23, 2015, Wilfredo Gonzales appeared before the Western District of New York (Geraci, C.J.) and pled guilty pursuant to a plea agreement to one count of conspiracy to manufacture, possess with intent to distribute, and distribute cocaine, and one count of possessing a firearm in furtherance of a drug trafficking offense. During the plea colloquy, the District Court failed to inform Gonzales, who was a lawful permanent resident, that he could be removed from the United States as a result of his conviction.
In a recent nonprecedential summary order, the Second Circuit (Winter, Lynch, Chin) vacated and remanded a sentence due to a condition of supervised release that prohibited the defendant from having unsupervised contact with any minor, including his nine-year old son. The summary order in United States v. Donohue, 17-943-cr, reflects the Circuit’s continuing concern that the conditions of supervised release be appropriate given the defendant’s conviction and personal circumstances.
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.
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.
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 Apprendi, Booker 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.
In United States v. Zukerman, No. 17-948 (2d Cir. Feb. 6, 2018) (ALK, RAK, RSP) (summary order), the appellant, Morris Zuckerman, challenged the substantive and procedural reasonableness of his sentence, which was imposed following his pleading guilty for tax evasion and obstruction of the IRS, see 26 U.S.C. §§ 7201, 7212(a). While Zukerman’s plea agreement contained a stipulated fine range of $25,000 to $250,000, the district court (Torres, J.) imposed a fine of $10 million. Given that tax fraud defendants are typically required to resolve their civil tax liabilities in parallel proceedings, it is unusual for such a large fine to be imposed in this type of case. After acknowledging that fine calculations are typically committed to the discretion of the sentencing judge, the Second Circuit held that Judge Torres’ comments at the sentencing hearing and in the written statement of reasons did not provide the panel with a sufficient basis to determine how she reached the $10 million fine amount. Rather than try to guess what considerations went into this calculation, the Court ordered a so-called “Jacobson remand”—wherein it remands “partial jurisdiction to the district court to supplement the record on a discrete factual or legal issue while retaining jurisdiction over the original appeal”—and directed the district court to “elaborate on its rationale for imposing a fine greater than those typically imposed in tax prosecutions.”
Circuit Says “I’ll Drink To That,” Grants Defendant’s Appeal Challenging Alcohol-Ban Condition of Supervised Release
Update: The Second Circuit’s decision in United States v. Betts (No 17-231), which was initially released as a non-precedential summary order on February 5, 2018, was re-released as a published opinion on March 28, 2018. A copy of the opinion can be found here. This upgrade to a precedential opinion is consistent with the Circuit’s recent focus on reasonableness review of the conditions of supervised release. For more on that subject, see our recent post on United States v. Donahue (17-943-cr) Second Circuit Continues To Give A Close Look To Supervised Release Conditions. We also welcome the Court’s decision to make this ruling one with precedential impact rather than a summary order. Even when the legal standard is neither disputed nor newly pronounced, the development of the law requires the application of the standard to different sets of facts, so that attorneys may argue by analogy. Given the relative infrequency with which sentences are reversed for being unreasonable, more guidance from the Circuit is always appreciated.
On January 9, 2018, the Second Circuit (Kearse, Cabranes, Wesley) rejected a request by ex-AOL Inc. employee Jason Smathers to junk the restitution component of his sentence, which requires him to recompense the online service provider for the losses it incurred after Smathers sold 92 million AOL screen names to spammers in the early 2000s—one of the earliest large-scale data security breaches of the Internet age. Smathers argued that his restitution award should be offset by damages later obtained by AOL in litigation against Smathers’s co-conspirators.
In a summary order on January 2, 2018 in United States v. Reyes, the Court (Winter, Lynch, Droney) vacated and remanded a life sentence as procedurally unreasonable on the ground that the district court failed to properly apply a reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. The decision reiterates that a three-level reduction is mandatory under certain circumstances if the district court has already imposed a two-level reduction, and that the government must formally move for a three-level reduction in order to bind the court’s hands. The third point of acceptance of responsibility under the Guidelines is not a matter of grace or kindness by the district court. When a defendant is entitled to receive the third point, the district court is obliged to award it.
In Rare Ruling Vacating Sentence as Both Procedurally and Substantively Unreasonable, Second Circuit Expounds on the Role of Mercy in Sentencing
In United States v. Singh, 16-1111-cr (Kearse, Hall, Chin), the Second Circuit vacated the defendant’s 60-month prison sentence—which was nearly three times the top of his Guidelines range—for illegally reentering the United States after the commission of an aggravated felony on the grounds that it was both procedurally and substantively unreasonable. This opinion stands out as a rare ruling striking down a sentence as substantively unreasonable. It is also notable for the Court’s musings on the role of mercy in the sentencing process.
The Klansman and His Death Ray: Second Circuit Affirms Conviction and Sentence in Bizarre Domestic Terrorism Plot
In United States v. Crawford, 16-4261-cr (Kearse, Cabranes, Wesley), the Second Circuit affirmed via summary order the terrorism-related conviction and sentence of a Klansman in upstate New York. This case represented the first conviction under the 2004 law barring the acquisition and use of so-called “dirty bombs” and provided a rare opportunity for the Circuit to interpret several terrorism statutes. It is most notable, however, for its bizarre fact pattern—involving Ku Klux Klan business cards, a modified x-ray machine, and a plot to kill President Barack Obama and an unknown number of Muslims. In August 2015, Glendon Scott Crawford—a Navy veteran and an avowed member of the Ku Klux Klan—was convicted of several counts of domestic terrorism and was subsequently sentenced to 30 years’ imprisonment for his crimes.
Circuit Amends Decision Affirming Sentence Two Panel Members Deemed “Absurd,” Remands for Resentencing
On October 5, 2017 the Circuit published an amended opinion in United States v. Jones, No. 15-1518 (Walker, Calabresi, Hall), which supplanted a decision issued on September 11 that we covered in an earlier blog post. The amended decision differs from its forbearer in one key respect. In the initial decision, Judge Calabresi authored a concurring opinion (joined in by Judge Hall) that chided the district court’s sentence, as affirmed by the Circuit, as “little short of absurd” given the defendant’s borderline IQ, old crimes, and the “timing quirks” that rendered the sentence “very, very high . . . in contrast with almost every similarly situated defendant.” Now, in this amended opinion, the panel affirmed but still remanded “for further consideration as may be just in light of the circumstances.”
Circuit Remands Restitution Order for Further Consideration of Indigent Defendant’s Right to Counsel and Application for Expert Services
In United States v. Torriero, the Second Circuit (Chin, Droney, Restani by designation) vacated by summary order a $765,561 restitution order relating to costs incurred by the EPA in cleaning up a property that the defendant had used as an illegal landfill. Although not the panel’s primary focus, the order also addresses a district court’s role in approving or denying an indigent defendant’s request for expert services—an issue currently being examined as part of a broader review of the defense funding under the Criminal Justice Act (“CJA”) by an ad hoc committee chaired by Judge Kathleen Cardone of the U.S. District Court for the Western District of Texas.
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