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.
Second Circuit Finds Death Extinguishes Trial Convictions and Related Restitution Order – But Tax Offenses and Bail Forfeiture Survive
In 2010, a federal jury in the Eastern District of New York convicted body-armor tycoon David H. Brooks of multiple counts of conspiracy, insider trading, fraud, and obstruction of justice for his role in a $200 million scheme to enrich himself from company coffers. Brooks was the founder and former chief executive of DHB Industries, the leading supplier of bulletproof vests to police departments and the U.S. military. Brooks later pleaded guilty to associated charges of conspiracy to defraud the IRS and filing false income tax returns that had been severed from the rest of the case. While he appealed the result of his jury trial, he did not appeal the tax fraud convictions (pursuant to the terms of a plea agreement). Brooks died in prison while his appeal was pending, forcing the Second Circuit to revisit an obscure area of law to decide what aspects of his convictions, if anything, survived his death. Ultimately, Brooks’s death in prison led to the abatement of his trial convictions, and with that abatement, the erasure of significant restitution obligations that Brooks otherwise would have owed.
On September 11, 2017, the Second Circuit (Parker, Carney, Stanceu) reversed by summary order the sentence of the defendant in United States v. Soborski (16-cr-3369). The panel remanded the case to the U.S. District Court for the Southern District of New York (Swain, J.) for resentencing so that the district court could consider whether Soborski should receive a minor-role reduction under an amendment to the Sentencing Guidelines.
Second Circuit Affirms Sentence Based on Correct Application of Career Offender Guideline, Yet Majority of Panel Agrees the Result is “Unjust” and “Close to Absurd”
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.
In United States v. Genao, No. 16-924 (Katzmann, Lynch, Chin), the Second Circuit examined the application of the categorical approach to a prior burglary conviction that indisputably involved threats of physical harm but whose minimal elements arguably did not meet the Guidelines’ definition of a “crime of violence.” The Second Circuit reaffirmed that the categorical approach requires evaluation of the elements of conviction, not the facts of conviction, making it reversible error for the district judge to have “short circuited” the analysis by starting with the facts. But the Second Circuit emphasized that in an advisory-Guidelines world, the district court is free to take those facts of conviction into account in exercising its discretion to set the final sentence. So long as the sentencing correctly applies and calculates the appropriate Guidelines sentence, the court is then liberated—indeed required—to pick the sentence that it believe best fits the crime.
In United States v. Browder, the Second Circuit (Cabranes, Lohier, Forrest, sitting by designation) has vacated in part an order finding that the defendant violated two conditions of supervised release. The Court’s decision sheds light on the respective roles of the district court and the Probation Office in entering and executing an order of supervised release, and it suggests that the Court may look with increased scrutiny at generalized conditions that defer to the Probation Office without sufficient judicial scrutiny, and may reject violation specifications based on those infirm conditions.
Court Remands Guidelines Sentence for Child Pornography Offenses Without Finding Procedural or Substantive Unreasonableness
In a summary order issued on July 11, 2017, United States v. Burghardt, No. 16-949(L) (Katzmann, Pooler, Lynch), the Second Circuit remanded a 322-month Guidelines sentence for distribution and receipt of child pornography for “further consideration” by the district court. The Court found the sentence to be procedurally reasonable and also found it was not substantively unreasonable, but nonetheless remanded the case for further consideration, continuing the recent trend of reversals in the sentencing of child pornography cases.
In United States v. Delacruz, No. 15-4174, the Second Circuit (Kearse, Lohier, Droney) vacated a defendant’s sentence, holding that the district court’s findings supporting the defendant’s failure to accept responsibility were clearly erroneous. In an opinion by Judge Kearse, the Second Circuit emphasized its precedent that a Sentencing Guidelines reduction for acceptance of responsibility is appropriate where the defendant truthfully admits the conduct comprising the offense of conviction. It would violate the Fifth Amendment’s Due Process Clause to withhold an acceptance of responsibility adjustment because the defendant denied other conduct that was not proved beyond a reasonable doubt. Thus, a “good-faith objection to material [presentence report] statements . . does not provide a proper foundation for denial of the acceptance-of-responsibility credit.”
On June 19, 2017, the Second Circuit (Katzmann, Kearse, Livingston) issued a per curiam decision in United States v. Burden, et al., vacating the term of supervised release imposed on the defendants and remanding the case for resentencing as to supervised release. Judge Kearse concurred in a separate opinion.
In United States v. Lyle, 15-958-cr (Raggi, Chin, Lohier), the Second Circuit covered an array of criminal procedure issues—including the Fourth Amendment concerns associated with rental car searches, proffer agreement waivers, and the admissibility of a co-defendant’s confession—in the course of affirming the defendants’ narcotics conspiracy convictions. Lyle leaves unresolved the issue of whether an unauthorized driver ever has a reasonable expectation of privacy in a rental car. It does provide, however, an important reminder of the potential pitfalls of proffer agreements and the challenges that arise when trying multiple defendants together.
On May 31, 2017, the Second Circuit issued its long-awaited decision in the “Silk Road” case, United States v. Ulbricht, (15-1815-cr) (2nd Cir. May 31, 2017) (Newman, Lynch, Droney). The panel affirmed Ulbricht’s conviction and sentence of life imprisonment, identifying no reversible error. Notwithstanding the many amici submissions challenging the district court’s unreasonableness in imposing a life sentence, the Court disagreed with those contentions and explained that it was required to be deferential to the district court. Judge Lynch, who is a scholar in the area of sentencing, reasoned that “[a]t his point in our history . . . the democratically-elected representatives of the people have opted for a policy of prohibition, backed by severe punishment.” Id. at 120 (emphasis added).
A Second Circuit panel has ruled that infamous mob boss Carmine “The Snake” Persico will continue serving his 100-year sentence in federal prison. In United States v. Persico, 16-2361, the Second Circuit (Walker, Jacobs, Parker) affirmed by summary order the decision of the United States District Court for the Southern District of New York (Duffy, J.), denying Persico’s motion to shorten his sentence pursuant to the old Federal Rule of Criminal Procedure 35(a).
In Summary Order, Second Circuit Finds Plain Error in Miscalculation of Defendant’s Supervised Release Guidelines Range
In United States v. Shaday, 16-529, the Second Circuit (Jacobs, Livingston, and Kaplan (sitting by designation)) vacated and remanded the supervised release portion of defendant Yova Kana Shaday’s sentence after finding that the district court had applied the wrong Guidelines range. The district court had sentenced Shaday to a Guidelines sentence of twenty-four months’ imprisonment for failing to register as a sex offender under 18 U.S.C. § 2250(a), along with a supervised release term of ten years. Reviewing for plain error, the Second Circuit found that the district court had miscalculated the supervised release portion of Shaday’s sentence when it applied a three-years-to-life Guidelines range instead of the correct five-year fixed term. Such an error was not harmless, the Court continued, as there was no indication in the record that the district court would have imposed the same supervised release sentence had it applied the correct Guidelines range; rather, the district court mistakenly believed it was imposing a within-Guidelines supervised release sentence and thus never considered whether to impose an upward departure.
In United States v. Bodouva, 16-3937 (March 22, 2017) (Katzmann, C.J., Pooler and Lynch, J.), the Court held in a per curiam order that a defendant convicted of embezzlement must forfeit the full amount of her illicit gains to the government even after paying restitution to victims. The ostensibly “duplicative” financial penalty entered against the defendant was not only permissible, but in fact required by statute. The district court thus appropriately ruled at sentencing that it lacked discretion to modify the forfeiture amount. With this decision, the Second Circuit joined several other circuits in holding that restitution and forfeiture serve distinct purposes and, absent clear statutory authority to the contrary, may not offset each other.
This Is Not Fine: Circuit Vacates Fine Imposed on Unable-to-Pay Defendant, Citing Lack of Reasoning or Evidence for Judge’s Sentence
In a summary order issued March 7, 2017, United States v. Marmilev, 14-4738 (Leval, Calabresi, and Carney), the Circuit vacated and remanded the portion of the defendant’s sentence imposing a $250,000 fine after the defendant pled guilty for charges including conspiracy to operate an unlicensed money transmitting business. From the Court’s procedural history, it’s fair to say that the fine assessed by the district court seemed to come out of the blue for all involved parties: the presentence report (PSR) had cited the defendant’s inability to pay and recommended against a fine; the Government did not request that a fine be imposed; and the district court did not question the PSR’s recommendation or indicate prior to sentencing that it was considering a fine. Yet not only did the district court order the defendant to pay a fine, but the fine it imposed was well in excess of the Guidelines range of $17,500-$175,000.
Court Affirms Conviction In Case Involving $126 Million Loan For Shopping Mall Transaction, Rejecting Argument That Sentence Should Be Lowered Because Of The Financial Crisis
In a summary order on March 8, 2017, the Second Circuit (Katzmann, C.J. and Pooler and Lynch, J.) affirmed the conviction and sentence for wire fraud in United States v. Frenkel. The case attracted some public attention because Frenkel’s co-conspirator, Mark Stern, was a cooperating witness in a number of public corruption cases brought by the U.S. Attorney for the Southern District of New York. The underlying facts involved Frenkel’s fraudulent inducement of Citigroup to lend $126 million to finance the purchase of shopping malls. Although the decision has no precedential value, it presented four interesting issues.
An Empty Bargain: Circuit Overturns Guilty Plea Entered By Defendant Unapprised of Mandatory Life Sentence
In a decision dated March 10, 2017, the Circuit issued a blistering decision vacating the district court’s denial of the defendant’s motion to withdraw his guilty plea in United States v. Johnson, No. 15-3498-cr (Jacobs, J., joined by Judges Cabranes and Parker), holding that the defendant’s plea to offenses requiring a mandatory life sentence was not made knowingly, voluntarily and intelligently. Readers squeamish of benchslaps are advised to stop reading here: the panel called out the defendant’s asleep-at-the-wheel trial counsel by name no fewer than a dozen times, and chided the “robotic” prosecutor for delivering a prolix recitation of the sentence facing the defendant during plea allocation. But the panel saved its strongest admonishment for the district court judge, whom it believed so incapable of handling the proceedings fairly and competently on remand that it directed the case to be reassigned. In the end, only the defendant – a repeat offender facing felony drug trafficking charges – emerged from the opinion unscathed.
Return to Sender: Aéropostale Employee’s Fraud Convictions Affirmed, But Restitution Order Sent Back for Recalculation
Aéropostale is known by many as a staple of adolescent wardrobes and shopping-mall standard. But as a patsy for kickback schemes? In United States v. Finazzo, 14-3213-cr, 14-3330-cr (Droney, J., joined by Judges Sack and Chin), issued March 7, 2017, the Circuit affirmed the mail and wire fraud convictions of an Aéropostale executive who, over the course of a decade, steered hundreds of millions of dollars in business to a vendor that cut him in on the profits. In affirming his convictions, the Court held that the defendant’s deprivation of Aéropostale’s right to control its assets was injury sufficient under the mail and wire fraud statutes, and that the district court had adequately instructed the jury that such deprivation must be able to cause tangible economic harm. However, the panel vacated and remanded the district court’s restitution order on the grounds that the calculations presumed that any financial gain to defendant through the scheme was a loss to Aéropostale. With little more direction than to “try again,” the court instructed the district court to develop a new methodology for computing a restitutionary award that subtracts any legitimate value that Aéropostale derived through its dealing with the vendor. The Circuit has long stressed the need for precision in restitution calculations, and it can be difficult to make such calculations in a kickback case prosecuted under a theory based on the deprivation of the right to control assets.
In a short summary order in United States v. Breton, the Court (Winter, Jacobs, Cabranes) vacated a term of supervised release because the district court had improperly calculated the advisory Guidelines range. Defendant Raddy Breton pleaded guilty to attempted possession of methylone with intent to distribute. Pursuant to U.S.S.G. § 5D1.2(a) and 18 U.S.C. § 3553(f), which limits the applicability of statutory minimums in certain cases, Breton faced an advisory Guidelines range of one to three years of supervised release. During sentencing, the district court calculated the applicable supervised release range as three years to life. Both parties submitted that the miscalculation constituted plain error.
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).
In United States v. Huggins,15-1676, the Second Circuit (Winter, Cabranes, and Restani, sitting by designation) limited the scope of two Guidelines enhancements often applicable to white-collar crimes: (1) U.S.S.G. §2B1.1(b)(16)(A), which provides for a two-level enhancement when the conduct derived more than $1 million from financial institutions; and (2) U.S.S.G. §3B1.3, which permits a two-level increase when a defendant has abused a position of public or private trust. Huggins marks the first time the Court has given thorough consideration to the first enhancement and further clarified how courts should apply the second.
Divided Court Withdraws Opinion Vacating 60-Year Child Pornography Sentence and Affirms the Sentence as Procedurally and Substantively Reasonable
In United States v. Brown, No. 13-1706, the Second Circuit (Pooler, Sack, and Droney), withdrew the Court’s June 14, 2016 opinion, vacating Nathan Brown’s sixty year prison sentence on three counts of production of child pornography, in violation of 18 U.S.C. § 2251(a); and two counts of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). On December 6, 2016, the divided panel issued a new opinion affirming the district court’s sentence.
In A Summary Order, Second Circuit Vacates 30-year Child Pornography Sentence on Substantive Reasonableness Grounds
In United States v. Sawyer, No. 15-2276, the Second Circuit (Jacobs, Pooler, Crawford) vacated and remanded for resentencing a case involving a conviction for possession of child pornography. The decision rested on a finding that the 30-year sentence was substantively unreasonable, yet was made by unpublished summary order. This is the third time in the past several months that a child pornography sentence has been vacated and remanded (see our posts on United States v. Bennett and United States v. Brown), but while the prior two decisions rested on procedural grounds as a means of sending the case back to the district court for a second look, Sawyer relies solely on substantive unreasonableness. It is very rare for the Second Circuit to reverse a within-the-range sentence for substantive unreasonableness.
Food For Thought: Court of Appeals Questions Relevance Of Guidelines To Case Of Fraud Involving Supplemental Nutrition Assistance Program
In United States v. Algahaim, No. 15-2024(L), the Second Circuit (Newman, Winters, Cabranes) upheld the conviction of two defendants for misconduct involving the Supplemental Nutrition Assistance Program (“SNAP”), but remanded to the district court for consideration of a below-Guidelines sentence. The Court, in an opinion by Judge Newman, held that the outsize effect of the loss amount enhancement on the defendant’s base offense level—a sentencing scheme for fraud that is “unknown to other sentencing systems”—required the district court to reconsider whether a non-Guidelines sentence was warranted.
In United States v. Heath Powers, 15-3867, the Second Circuit (Cabranes, Pooler, Parker) issued a per curiam decision remanding to the U.S. District Court for the Northern District of New York (D’Agostino, J.) with instructions to vacate an erroneous count of conviction on a child pornography charge and for de novo resentencing. The defendant had been charged by a federal grand jury of eleven counts of production of child pornography, one count of distribution of child pornography, and one count of possession of child pornography. The Court’s description of the underlying facts indicated that the defendant also engaged in sexual acts with the seven-year old girl he had photographed. After the defendant pleaded guilty to all counts, the district court sentenced him to a below-Guidelines 480-month term of imprisonment, which included terms of imprisonment on each count, all to be served concurrently.
The Court in Sanford v. United States, 16-1840 (Katzmann, Wesley, Hall) yesterday dismissed Petitioner Elijah Sanford’s motion for leave to file a successive § 2255 motion to challenge his sentence, concluding that Sanford’s challenge was precluded by an enforceable collateral attack waiver, knowingly and voluntarily made, in his plea agreement.
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.
Disjunction, Disjunction, What’s Your Function? Despite Statutory “or,” Court Holds Same Conduct May Support Both Modification and Revocation of Supervised Release
At issue in the Court’s September 22, 2016 decision in United States v. Harris, No. 15-1774 (Raggi, J., joined by Judges Newman and Calabresi) is a clever defendant’s embrace of the disjunctive in Section 3583 in urging that the statute governing revocation of supervised release permits a violation of release conditions to serve as the basis to revoke “or” modify supervision – but not both.
The line that separates lawful tax shelters from unlawful ones is notoriously hazy, particularly at the margins. There is little question, however, that a transaction that serves no meaningful business purpose other than to reduce one’s tax liability will be treated as an illegitimate tax shelter.
In Alleyne v. United States, 133 S. Ct. 2151 (2013), the U.S. Supreme Court held that the Sixth Amendment requires that any fact that increase the mandatory minimum penalty for a crime must be submitted to the jury and found beyond a reasonable doubt. Id. at 2155. Alleyne, however, noted in a footnote that it was not “revisit[ing]” the exception to this general rule for the fact of a prior conviction. Id. at 2160, n.1. Recently, in United States v. Anthony Boykin et al., Nos. 14-851-cr & 14-1033-cr (Walker J., Calabresi, J., Hall, J.), the Second Circuit also declined to revisit that exception. Although there is a certain logic to extending Apprendi v. New Jersey, 530 U.S. 466 (2000), to the fact of a prior conviction—so that any fact that increases the minimum or maximum sentence faced by a defendant must be put to the jury—this exception contained in Apprendi continues to endure.
Evidence That Defendant Targeted Marijuana Dealer for Marijuana or Proceeds Satisfies Hobbs Act Interstate Commerce Element
The Hobbs Act makes it a crime to “obstruct, delay, or affect commerce or the movement of any article or commodity in commerce, by robbery . . . or attempt or conspire so to do.” 18 U.S.C. § 1951(a). “[C]ommerce” is defined under the Act to include “all . . . commerce over which the United States has jurisdiction.” Id. § 1951(b)(3). With its opinion in United States v. Lee, 11-2539, 11-2543, 11-2834, 11-4068, the Court (Cabranes, Pooler, Lynch) has made clear that evidence that a defendant targeted a marijuana dealer for his marijuana or marijuana proceeds is sufficient to satisfy the Hobbs Act’s interstate commerce element (see Op. at 13).
Court Rules That District Court Had Power to Adjudicate Supervision Violations Charged After Expiration of Supervision Term
In United States v. Edwards, the Court (Sack, Raggi, Droney) affirmed a judgment of the District Court (Chatigny, J.) revoking the supervised release of Defendant-Appellant Owen Edwards and sentencing Edwards to 24 months’ imprisonment based on four supervision violations. Edwards had raised two issues on appeal: first, whether the District Court had jurisdiction to revoke his supervised release based on violations charged after the scheduled expiration of his term of supervision; and second, whether the evidence was sufficient to support the particular charge that Edwards had committed a crime while under supervision.
On August 17, 2016, the Second Circuit issued a decision in United States v. Stevenson, No. 14-1862-cr, holding that a state legislator convicted of bribery could be required to forfeit a portion of his pension fund as part of a sentence. Former New York State Assemblyman Eric Stevenson was convicted in 2014 of conspiracy to commit honest services wire fraud, conspiracy to commit federal programs bribery and to violate the Travel Act, accepting bribes, and extortion under color of official right. The charges arose out of an investigation finding that Stevenson took bribes of $22,000 from businessmen in the Bronx who ran an adult day care center in exchange for proposing legislation that would have imposed a moratorium on new facilities that would have provided competition.
Above-Guidelines Sentences for Prostitution Ring Upheld, Including Where Portions of Rule 11 Transcript Missing
In United States v. Jiamez-Dolores, et al., 14-1840(L) (August 3, 2016) (Hall, Lynch, Chin), the Court in a per curiam order affirmed above-guidelines sentences given to two defendants who each pleaded guilty to one count of conspiracy for their participation in a sex-trafficking enterprise. Both defendants appealed the reasonableness of their sentences. One defendant also challenged his sentence based on an incomplete transcript from his plea and sentencing hearing.
Second Circuit Grants Successive Habeas Petition Challenging Application of Career Offender Guideline’s Residual Clause
In Blow v. United States, 16-1530 (Katzmann, Wesley, Hall), the Court granted Michael Blow’s motion for leave to file a second or successive habeas petition in a short per curiam opinion. Blow’s motion asked the Court to consider the application of the career offender sentencing enhancement. That enhancement, Section 4B.1.1 of the U.S. Sentencing Guidelines, raises a defendant’s offense level if the defendant has two previous convictions for a “crime of violence.” A “crime of violence” is defined, in part, as an offense that “otherwise involves conduct that presents a serious potential physical risk of injury to another.” This “residual clause” is identical to language in the Armed Career Criminal Act (which provides for heightened punishment for firearm offenders with three prior convictions for a “violent felony”) declared unconstitutionally vague by Johnson v. United States, 135 S. Ct. 2251 (2015).
In United States v. Jones, 15-1518-cr (Walker, Calabresi, Hall), the Second Circuit, applying the Supreme Court’s holdings in Johnson v. United States, 559 U.S. 133 (2010) and Johnson v. United States, 134 S. Ct. 2551 (2015) (Johnson 2015), struck down the “residual clause” of the Career Offender Guideline as void for vagueness and held that a conviction for robbery in New York no longer constitutes a “crime of violence” in all circumstances. This case reaffirms Second Circuit precedent recognizing the application of Johnson and Johnson 2015 to the sentencing guidelines, an issue that will be taken up by the Supreme Court this fall.
In United States v. White, 15-229-cr (Cabranes, Droney, Meyer by designation), the Second Circuit ordered a remand for resentencing via summary order, instructing the lower court to consider the defendant’s post-sentencing rehabilitation. Although the order is not precedential, it represents an important reminder that practitioners can raise new factual arguments at resentencing based on changes in the defendant’s circumstances since the time of the initial sentencing proceedings.
Second Circuit Demonstrates the Difficulties in Withdrawing a Guilty Plea and Challenging a Below-Guidelines Sentence
In United States v. Rivernider, 13-4865, the Court (Livingston, J., Lynch, J. and Rakoff, D.J., sitting by designation) affirmed the judgment entered by the United States District Court for the District of Connecticut (Chatigny, J.) against two defendants, Robert Rivernider and Robert Ponte. The defendants pled guilty and were sentenced for multiple counts of wire fraud, conspiracy to commit wire fraud, and tax evasion stemming from a Ponzi scheme and real estate scheme the two ran together.
In United States v. Brown, No. 13-1706, a divided panel of the Second Circuit (Pooler, Sack, Droney (dissenting)) vacated and remanded Nathan Brown’s sixty-year prison sentence on five child pornography counts out of a concern that the district court “may have based its sentence on a clearly erroneous understanding of the facts.” Brown pleaded guilty to three counts of production of child pornography, in violation of 18 U.S.C. § 2251(a); and two counts of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). Brown’s crimes were horrific and involved the creation of 145 sexually explicit images and three videos of three young girls between the ages of eight and thirteen, as well as the corresponding publication of many of those images on the Internet. In addition, on multiple occasions, Brown hid pinhole cameras in public and private locations where they were likely to capture images of nude children. Law enforcement also recovered over 25,000 still images and 365 videos depicting child pornography on Brown’s computer, including images involving torture, bondage, bestiality, sexual intercourse, and foreign objects.
Sentence Vacated In Summary Order for Plain Error Based on Jury’s Failure to Find a Fact Necessary for Imposition of Mandatory Minimum
In a summary order issued on June 22, 2016 in United States v. Golding, No. 15-891-cr (Straub, Wesley, Droney), the Second Circuit remanded a case for resentencing based on the jury’s failure to find a fact necessary to the court’s imposition of a 15-year mandatory minimum sentence. Because defense counsel did not object on these grounds at the trial court, the Second Circuit’s review was limited to plain error. The Court’s use of a summary order suggests it viewed this case as routine, but the decision gives a rare win to a criminal defendant under the stringent plain error standard.
In a nonprecedential summary order in United States v. Mangone, No. 15-4057, the Second Circuit (Hall, Lynch, Chin) vacated the eighteen-month prison sentence of Westchester attorney Anthony Mangone and remanded Mangone’s case to the U.S. District Court for the Southern District of New York (McMahon, J.) for resentencing. Mangone had pleaded guilty to conspiracy, bribery, extortion, and tax evasion relating to a highly publicized real estate and political corruption scandal in Yonkers. The Second Circuit vacated Mangone’s sentence on the ground that the district court committed clear procedural error, having calculated the applicable U.S. Sentencing Guidelines range at 37–46 months’ imprisonment, while the correct range was only 30–37 months. Although the district court imposed a prison term below the lower of those two ranges, the Second Circuit concluded that resentencing was nonetheless required as “an incorrect calculation of the applicable Guidelines range will taint not only a Guidelines sentence … but also a non-Guidelines sentence, which may have been explicitly selected with what was thought to be the applicable Guidelines range as a frame of reference.” The remand for resentencing was not controversial—in fact, the government had agreed that the district court committed reversible error and had consented to a remand.
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.
In United States v. Bladimir Rigo, 15-1914, the Second Circuit remanded for resentencing by summary order, finding that the District Court plainly erred when it sentenced the defendant based on the criminal activity of coconspirators without first making certain particularized “relevant conduct” findings about that activity. On June 2, 2015, the U.S. District Court for the Southern District of New York (Sweet, J.) sentenced Bladimir Rigo for his involvement in a conspiracy to commit healthcare fraud and unlawfully distribute prescription pills. The District Court applied a $2.9 million loss calculation to its determination of Rigo’s sentence, some portion of which may have been based on the acts of Rigo’s coconspirators. The District Court concluded that because Rigo “pled guilty to participating in a conspiracy, he is equally liable for the acts of his coconspirators, including others who may have written [the records found in Rigo’s home], and the plans and intentions of the conspiracy, whether consummated or not.” United States v. Rigo, 86 F. Supp. 3d 235, 242 (S.D.N.Y. 2015).
In United States v. Kent, 14-2082, 14-2874, the Court (Livingston, J., Hall, J., and Hellerstein, J. sitting by designation), the Court vacated the sentence imposed by the United States District Court for the Southern District of New York (Forrest, J.) and held that the record was insufficient to impose Guidelines Section 3B1.1(a)’s leadership enhancement. Section 3B1.1 provides for a four-level increase in offense level if the defendant “was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive.” In Kent, the Court restated that the “otherwise extensive” prong of this enhancement is not meant to be a qualitative assessment of whether the crime was serious, but rather involves a quantitative question about the number of criminally responsible and unknowing participants in the offense. Because the district court did not conduct the required analysis, the Court of Appeals reversed and remanded the case.
Second Circuit Finds In Camera Sentencing Colloquy Conducted in Defendant’s Absence Violated Fifth Amendment Rights
In Morales v. United States, 15-243-cv (Pooler, Parker, Livingston), the Second Circuit granted habeas relief to petitioner Jorge Luis Morales on the grounds that it was ineffective assistance of counsel for his attorney not to raise a Fifth Amendment challenge to the lower court’s (Nevas, J.) decision to conduct in camera sentencing discussions outside of Morales’s presence. Although the Circuit chose to decide this matter via non-precedential summary order, this represents the rare case where ineffective assistance of appellate counsel excused a habeas petitioner’s procedural default.
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