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.
In United States v. Parisi, 15-963 (May 3, 2016) (RAK, RDS, RJL), the Court issued a per curiam order affirming changes to the Defendant’s conditions of supervised release ordered by the United States District Court for the Northern District of New York (Lawrence E. Kahn, J.). Rejecting Defendant’s principal challenge, the Court held that a district court may modify conditions of supervised release even in the absence of new or changed circumstances specific to the defendant. The Court also rejected Defendant’s claims that the new conditions did not satisfy relevant statutory requirements and were imposed without adequate process. This short decision is a reminder of the broad discretion of the district court, guided by probation officers, to modify and expand conditions of supervised release or probation, so long as the conditions are “reasonably related” to the offense, the offender, or the goals of post-release supervision (protection of the public, deterrence and rehabilitation).
In United States v. Pattee, 14-32163-cr (April 21, 2016) (GC, GEL, RJL), the Court affirmed a judgment of conviction and sentence entered in the United States District Court for the Western District of New York (Frank P. Geraci, Jr., C.J.). The Defendant was charged in a 13-count Indictment for producing, distributing, and possession of child pornography. After losing a motion to suppress, the defendant pleaded guilty to all 13-counts and was sentenced to a 47-year term of incarceration.
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