Author Archive | Anthony O'Rourke

Wednesday, July 11th, 2018

Judge Kavanaugh on Criminal Law: Bad News Except…

Bloomberg News has an article (behind a paywall) that surveys Judge (and presumptive Justice) Kavanaugh’s criminal law jurisprudence.  The short story is that Judge Kavanaugh has been very bad for criminal defendants; one former SDNY prosecutor predicts that “he will be a reliable vote for the government in criminal cases, along the lines of Justice Alito.”

There are, however, a few glimmers of hope:

  • Concurring in an opinion reversing a murder conviction for faulty jury instructions, Judge Kavanaugh explained that, notwithstanding the defendant’s “heinous crime,” he was “unwilling to sweep under the rug” that the instructions left the jury with an incorrect understanding of the mens rea requirements governing second-degree murder and manslaughter. United States v. Williams, 836 F.3d 1, 20 (D.C. Cir. 2016).
  • In a concurring opinion affirming false statements conviction under 18 U.S.C. § 1001, Judge Kavanaugh cautioned that “§ 1001 prosecutions can pose a risk of

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Categories: 924(c), acquitted conduct, false statements, jury instructions

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NACDL Report on the Trial Penalty

The National Association of Criminal Defense Lawyers (NACDL) recently released a report that is somewhat provocatively, but fairly, titled: The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It.  The report, available here, offers a succinct assessment of the legal and institutional pressures that coerce 97% of state and federal defendants into plea bargains.

From the Executive Summary:

[O]ver the last fifty years, trial by jury has declined at an ever-increasing rate to the point that this institution now occurs in less than 3% of state and federal criminal cases. Trial by jury has been replaced by a “system of [guilty] pleas”3 which diminishes, to the point of obscurity, the role that the Framers envisioned for jury trials as the primary protection for individual liberties and the principal mechanism for public participation in the criminal justice system.

Guilty pleas


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Categories: guilty plea, Sixth Amendment

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Tuesday, July 10th, 2018

Judge Weinstein Urges More Frequent Termination of Supervised Release (Including for Marijuana Users)

Last week Judge Weinstein issued a remarkable opinion, available here, terminating supervised release for a defendant who, apart from habitual marijuana use, has committed no crimes since his release from prison. See United States v. Trotter, No. 15-cr-382, DE 543 (E.D.N.Y. July 5, 2018). The lengthy-but-readable opinion is worth reading in its entirety, particularly for those not intimately familiar with the law governing supervised release.

The opinion in Trotter made headlines for Judge Weinstein’s commitments to avoid punishing supervisees for marijuana use, and to terminate supervised release for marijuana users who are otherwise rehabilitated.  Equally relevant to practitioners, however, is Judge Weinstein’s more general critique of excessive supervision. Particularly important is Judge Weinstein’s suggestion that the defense bar move more frequently for termination of supervised release in the interest of justice pursuant to 18 U.S.C. § 3583. Indeed, Judge Weinstein urges practitioners to move for termination of supervised release …


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Categories: marijuana, sentencing, sentencing findings, supervised release

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Thursday, June 28th, 2018

Second Circuit Reversal of Vulnerable Victim Sentencing Enhancement

Today, in a summary order, the Second Circuit remanded a case for resentencing based on the district court’s erroneous application of the vulnerable victim enhancement. The decision may be useful to practitioners whose clients who were not necessarily aware of a victim’s vulnerable status during the commission of their charged offenses. The summary order in United States v. Nicholson, No. 17-197 (2d Cir. 2018) (Newman, Cabranes, Carney) (appeal from WDNY), is available here.

The defendant in Nicholson was himself a victim of a “Jamaica lottery scam,” wherein he was advised that he won $15 million in a lottery, which he could collect after paying $860 in local taxes. The scam-runner told Nicholson he could bay off these taxes by collecting money from third parties who were also victims of the scam. As it happened, one of those third parties was an elderly man in California, who …

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Recap of Supreme Court Decisions in Carpenter and Currier

As we mourn Justice Kennedy’s retirement, Sentencing Resource Counsel Sissy Phleger has graciously allowed us to post her summaries of the Supreme Court’s recent decisions in Carpenter v. United States (opinion available here) and Currier v. Virginia (opinion available here):

First, in the eagerly-anticipated Carpenter v. United States, the Court held that the government’s acquisition of Mr. Carpenter’s cellphone location records was a Fourth Amendment search. Roberts wrote for the majority, joined by Kagan, Breyer, Sotomayor, and Ginsburg. All the dissenters filed separate opinions (and variously join in each other’s). While the majority opinion is at pains to confine its impact, this is a great win with potential implications far beyond its specific circumstances.

Mr. Carpenter had challenged the use of warantlessly-obtained historical cell-site location records used to convict him of a string of armed robberies. He argued that the records constituted a search, and thus required …


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Categories: cell phone location information, double jeopardy, Fourth Amendment

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Tuesday, June 26th, 2018

Plain Error Under Rosales-Mireles

Though it disgraced itself today, the Supreme Court issued a hopeful opinion last week in Rosales-Mireles v. United States concerning the scope of plain error review for unobjected-to Guidelines miscalculations at sentencing. One of the most significant parts of this opinion is a footnote where the Court confirms that “proof of a plain Guidelines error” will ordinarily be sufficient for a defendant to meet the burden of showing that the error “seriously affected the fairness, integrity, or public reputation of judicial proceedings.” Slip op. at 11 n.3. The opinion, worth reading in its entirety, is available here.

The defendant in Rosales-Mirales was sentenced (for illegal reentry) based on an incorrect Guidelines range resulting from an incorrect calculation of his criminal history score. He was sentenced at the low end of the incorrectly calculated Guidelines range, but squarely in the middle of the correct Guidelines range. The defendant did not …

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Categories: plain error, sentencing

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Categories: plain error, sentencing

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Friday, June 15th, 2018

Sua Sponte, Post-Dimaya Order Granting Leave to File a Successive 2255 Motion

On the post-Dimaya front, the Second Circuit gave us some good—but easily overlooked—news last week. See Acosta v. United States, No. 16-1492 (2d Cir. 2018) (Jacobs, Livingston, Droney) (clerk’s order). In a sua sponte order, available here, the Circuit granted leave to file a successive 2255 petition arguing that a conviction under 18 U.S.C. § 924(c)(3)(B) is unconstitutional.

Here’s the analysis:

Petitioner has “made a prima facie showing that his claim satisfies § 2255(h) and warrants fuller exploration by the district court.” Blow v. United States, 829 F.3d 170, 172 (2d Cir. 2016).

Section § 924(c)(3)(B) is essentially identical to 18 U.S.C. § 16(b), which was found unconstitutional by the Supreme Court in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), largely based on the Supreme Court’s analysis in Johnson. The Supreme Court has held Johnson to be retroactively applicable to cases on collateral review.


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Categories: 924(c), categorical approach, due process

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(Non-)Waiver and the Generic Definition of Manslaughter

Last week the Second Circuit issued an opinion holding that, under the residual clause of the pre-2016 Career Offender Guideline (COG), U.S.S.G. § 4B1.2(a)(2), offenses under a subsection of New York’s first-degree manslaughter statute are crimes of violence. In so holding, the Circuit defined the generic definition of manslaughter to include “the unlawful killing of another human being recklessly.” United States v. Castillo, No. 16-4129 (2d Cir. 2018) (Cabranes, Raggi, Vilardo (WDNY)) (appeal from Woods, J., SDNY), slip op. at 24. The Court further held, in conclusory fashion, that the government did not waive this argument when it conceded, pre-Beckles, that the residual clause of the pre-2016 COG was unconstitutionally vague. The opinion in Castillo, available here, may be of interest to practitioners dealing with the pre-2016 Guidelines, and is more generally worth noting for its loose language  concerning appellate waiver — language that …


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Categories: career offender, categorical approach, manslaughter, waiver

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Friday, June 8th, 2018

New Supreme Court Opinions on 3582(c)

Along with some decision about cake, the Supreme Court issued two opinions this week concerning the scope of 18 U.S.C. § 3582(c)(2)’s requirement that, to be eligible for a sentencing reduction, the defendant’s sentence must have been “based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 18 U.S.C. § 994(o).”

In Koons v. United States, the Court issued a short, unanimous opinion holding that a sentence is not “based on” the Guidelines where the defendant was originally sentenced below the mandatory minimum for providing substantial assistance to the government. When the government so moves, see U.S.S.G. § 5K1.1, the district court is authorized to “impose a sentence below” the statutory minimum “so as to reflect a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense.” 18 U.S.C. § 3553(e). The Court held that, under …

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Categories: 3582(c)(2)

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Categories: 3582(c)(2)

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Friday, June 1st, 2018

This Week’s Supreme Court Opinions

This week the Supreme Court issued two opinions, both of which seem relatively straightforward in their holdings.

In Collins v. Virginia, the Court held that the automobile exception to the Fourth Amendment does not permit a warrantless search of a vehicle parked within the curtilage of a home. In Collins, police officers tracked a stolen vehicle to the address of the defendant’s girlfriend. There, parked in the driveway, an officer saw what appeared to be a motorcycle frame covered with a white tarp. The officer entered the driveway, uncovered the tarp, and confirmed that it was the stolen motorcycle.

Justice Sotomayor’s opinion, for an eight-member majority, is clear in its language and broad in its scope. The opinion swiftly concludes that the part of the driveway on which the motorcycle was parked was curtilage.  That portion of the driveway was enclosed on three sides, but open …


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Categories: automobile exception, curtilage, Fourth Amendment, MVRA

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Friday, May 18th, 2018

Supreme Court Roundup (including post-Dimaya GVRs)

This week the Supreme Court issued a number of significant criminal opinions, as well as a number of GVRs signalling that the holding of Sessions v. Dimaya likely extends to § 924’s residual clause (18 U.S.C. § 924(c)(3)(B)).

In McCoy v. Louisiana, 16-8255, the Court held that it was structural Sixth Amendment error for an attorney to concede a defendant’s guilt, against his wishes, in the hope of sparing him the death penalty. McCoy’s attorney argued that his client lacked the mental capacity to form the specific intent necessary for first-degree murder, see slip op. at 3 n.1, but conceded in his opening statement that the jury could not reach “any other conclusion than Robert McCoy was the cause of” the victims’ deaths. Id. at 4. This strategy, the Court held, violated the client’s Sixth Amendment rights regardless whether it was “counsel’s experienced-based view . . . that confessing …


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Categories: 924(c), Fourth Amendment, ineffective assistance of counsel, right to counsel, traffic stop, wiretaps

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