Federal Defenders of New York Second Circuit Blog


Friday, January 25th, 2019

The 924(c)(3)(B) Circuit Split Grows (in a Good Way)

This week, the Fourth Circuit held in United States v. Simms, No. 15-4640 (4th Cir. 2019) (en banc) that § 924(c)(3)’s residual clause is unconstitutionally vague and therefore that conspiracy to commit Hobbs Act robbery is not a crime of violence. The decision deepens the Circuit split on this issue, which the Supreme Court will soon address in Davis.

Notably, the en banc majority in Simms declined to apply the constitutional avoidance canon to adopt a conduct-specific reading of § 924(c)(3)(B). The avoidance canon has “no application,” the Court stated, where “there is an absence of more than one plausible construction” of the statute. Slip op. at 41 (quotation marks omitted). As the Court explained elsewhere, the government’s favored reading of § 924(c)(3)(B) is implausible because its text and structure “unambiguously require courts to analyze the attributes of an ‘offense that is a felony . . . by …


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Categories: 924(c), categorical approach, conspiracy, crime of violence, Hobbs Act, Johnson

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Wednesday, January 16th, 2019

Loss in Stokeling

Yesterday, in Stokeling v. United States, the Supreme Court held that Florida robbery is a violent felony under the Armed Career Criminal Act (ACCA). In doing so, the Court modified Johnson‘s understanding of the degree of “force” necessary for to satisfy the ACCA’s force clause. The excellent summary below is courtesy of Aamra Ahmad, of the Sentencing Resource Counsel Project, and Paresh Patel, Appellate Chief for the District of Maryland Federal Defenders:

Today, in Stokeling v. United States (17-5554), the Court revisited the meaning of the term “physical force” as it is used in the elements clause of the ACCA statute. In Johnson v. United States, 559 U.S. 133, 140 (2010), the Court defined “physical force” as a quantity of “force capable of causing physical pain or injury.” But in Johnson, the Court also used words such as “severe,” “extreme,” “furious,” or “vehement” to define “physical …


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Categories: ACCA, categorical approach, robbery

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Friday, January 11th, 2019

Cert. Grant in Davis

The Supreme Court recently granted a certiorari petition in Davis v. United States that presents the following questions:

(1) Whether 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague;

(2) whether Hobbs Act robbery is a “crime of violence” as defined by 18 U.S.C. § 924(c)(3); and

(3) whether a prior Texas conviction for burglary is a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e).

Practitioners should take care to preserve challenges to § 924(c)(3)’s residual clause notwithstanding the Second Circuit’s holding in Barrett, and to preserve arguments that offenses such as Hobbs Act robbery (and conspiracy to commit that offense) are not crimes of violence under  § 924(c)(3). (Note that, as of the date of this post, the mandate has not issued in Barrett.)…


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Categories: 924(c), ACCA, categorical approach, certiorari, conspiracy, crime of violence, Hobbs Act, Johnson

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Tuesday, December 18th, 2018

Supreme Court Decides Stitt

Last week, the Supreme Court held in United States v.  Stitt, Nos. 17-765 & 17-766, that the Armed Career Criminal Act’s (ACCA’s) definition of “violent felony” covers burglary statutes that criminalize unlawful entry into vehicles adapted or customarily used for overnight accommodation. As explained below, the decision does not appear to have any bearing on whether the ACCA covers New York’s third-degree burglary statute, N.Y. Penal Code § 140.20.

The enumerated clause of the ACCA identifies “burglary” as a violent felony. 18 U.S.C. § 924(e)(1)(ii). In Taylor v. United States, 495 U.S. 575 (1990), the Supreme Court adopted the categorical approach to analyzing the ACCA and, in doing so, held that Congress “intended a uniform definition of burglary [to] be applied” to cases involving that predicate offense. Id. at  580. This uniform definition of burglary, the Court held in Taylor, covers unlawful entry into “a building or other …


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Categories: ACCA, burglary, career offender, crime of violence

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Monday, December 10th, 2018

Misleading Description of Circumstances Under Which Defendant Made Statement Leads to New Trial

In United States v. Vinas, the Second Circuit vacated a conviction and remanded for a new trial based on the government’s Rule 16 discovery violation.

 In Vinas, a courier case, the government’s Rule 16 notice disclosed that Vinas had made a self-incriminating statement during the “initial inspection” of his luggage, i.e., in a public area of the terminal at JFK Airport. Because the Circuit has held that routine questioning in the public area of an international terminal is non-custodial, the defense did not move to suppress, even though the statement was un-Mirandized. At trial, however, it emerged that the Rule 16 notice was not accurate (or, at least, ambiguous). Vinas had in fact made the statement only after four armed CBP officers took his passport and escorted him to a private search room, arguably a custodial setting. Defense counsel objected that the misleading disclosure caused him to forgo


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Categories: discovery, Miranda

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Appeal Waiver in Plea Agreement Invalid Without Consideration from Government

In United States v. Lutchman, the Second Circuit held a waiver of appeal contained in a plea agreement was invalid because it was not supported by consideration from the government.  Mr. Lutchman pled guilty to one count of conspiracy to provide material support to a foreign terrorist organization pursuant to a plea agreement that calculated an advisory guidelines range at the statutory maximum and contained an appeal waiver for any sentence at or below the statutory maximum.  Yet he “received no benefit from his plea beyond what he would have gotten by pleading guilty without an agreement.”  The government’s agreement not to oppose the two-level reduction under the guidelines for acceptance of responsibility and to move for the one-level reduction under U.S.S.G. 3E1.1(b) for Lutchman’s timely notification of his intention to plead guilty did not constitute consideration for the appeal waiver because the combined three-level reduction was available to …


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Categories: material support statute, waiver

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Tuesday, December 4th, 2018

Ninth Circuit Holds Statute Barring “Encouraging and Inducing an Alien” Abridges Constitutionally-Protected Speech

Something to look out for on the immigration front:

The Ninth Circuit held that 8 U.S.C. 1324(a)(1)(A)(iv) which prohibits “encouraging and inducing an alien to remain in the United States” abridges constitutionally-protected speech. Because “[a]t the very least, it is clear that the statute potentially criminalizes the simple words . . . “I encourage you to stay here,” the statute “criminalizes a substantial amount of constitutionally-protected expression” and therefore is unconstitutionally overbroad in violation of the First Amendment.

The case is United States v. Sineneng-Smith, and you can access the opinion here.…

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Categories: immigration

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Categories: immigration

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Friday, November 9th, 2018

Judge Weinstein on Alcohol-Related Supervised Release Violations

Judge Weinstein issued an opinion this week terminating the supervised release of a defendant who violated a standard condition of release by consuming alcohol while in a drug treatment program. See United States v. Thomas, No. 15-cr-382, DE 575 (Nov. 6, 2018), available here. The opinion builds on Judge Weinstein’s more extensive opinion in United States v. Trotter concerning violations of supervised release for marijuana use. As Judge Weinstein urged in Trotter, practitioners should move to modify or terminate supervised release where the defendant’s only violations consist of minor infractions. (Indeed, Judge Weinstein suggests in Trotter that practitioners should move for termination of supervised release in all cases where the defendant has completed one year of supervision.)

As is customary with Judge Weinstein, the opinion’s introduction provides an excellent synopsis of its analysis:

The instant memorandum considers [an] important issue in supervised release: what to do with


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Categories: sentencing, sentencing findings, supervised release

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Friday, November 2nd, 2018

Second Circuit Upholds “Barbaric,” but Somehow Substantively Reasonable, Sentence

In a remarkably fatalistic opinion, the Second Circuit rejected a substantive reasonableness challenge to a 25 year sentence for child pornography sentence charges. The sentence, the panel explained, was “barbaric without being all that unusual.” United States v. Sawyer, No. 15-2276 (2d Cir. Oct. 6, 2018) (Jacobs, Pooler, Crawford (D. Vt.)), available here.

The defendant in Sawyer was initially sentenced to 30 years’ imprisonment on charges of sexual exploitation and receiving child pornography. The defendant’s PSR documented that the defendant suffered a childhood of severe physical and sexual abuse. The district judge described this childhood as “horrific” and “nightmarish,” but admonished the defendant that “I can’t excuse that darkness in your heart and soul that made you prey upon two innocent children.” Slip op. at 3-4. (The defendant was prosecuted for having, but not distributing, graphic cellphone photos of two young girls with whom he had …


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Categories: child pornography, law-of-the-case doctrine, substantive reasonableness

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Thursday, October 25th, 2018

Interesting 9th Circuit Reverse Stash House Opinion

In a recent opinion, the Ninth Circuit held that selective enforcement claims in reverse stash-house sting operations are not subject to the nearly impossible-to-surmount discovery standard set forth in United States v. Armstrong, 517 U.S. 457 (1996).  See United States v. Sellers, 16-50061 (9th Cir. 2018), opinion available here.

Chief Federal Public Defender Jon Sands, who posts on the excellent Ninth Circuit Blog, has this summary:

In US v. Sellers, No. 16-50061 (10-15-18) (Nguyen w/Simon; Nguyen concurring; Graber dissenting), the panel majority held that in stash house reverse-sting cases, claims of selective enforcement are governed by a less rigorous standard than that applied to claims of selective prosecution under US v. Armstrong, 517 US 456 (1996). The 9th emphasizes the difference between selective prosecution and selective enforcement (9). The 9th stresses that the police do not enjoy the enforcement presumption of prosecutors and …


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Categories: equal protection, selective enforcement, stash house, sting

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Barrett Petition for Rehearing and the Growing 924(c)(3)(B) Circuit Split

A petition for rehearing, available here, has been filed in United States v. Barrett, No. 14-2641 (2d Cir. 2018), which held that § 924(c)(3)’s residual clause is not unconstitutionally vague and that conspiracy to commit Hobbs Act robbery is not a crime of violence.  Practitioners with Johnson petitions pending in district courts should, in appropriate cases, consider requesting stays pending the resolution of this petition.

In addition, the First Circuit has recently held that 924(c)’s residual clause is not void for vagueness.  See United States v. Douglas, No. 18-1129 (1st Cir. Oct. 12, 2018), opinion available here. There is now a 3-3 circuit split on this question:

Three Circuits have held that § 924(c)(3)(B) is unconstitutional in light of Dimaya. See United States v. Davis, 903 F.3d 483 (5th Cir. 2018); United States v. Eshetu, 898 F.3d 36 (D.C. Cir. 2018); United States


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Categories: 924(c), categorical approach, crime of violence, Johnson

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