Author Archive | Daniel Habib

Wednesday, September 20th, 2023

Second Circuit Affirms 18 U.S.C. § 115(a)(1)(B) Conviction And Sentence For Defendant Who Posted “Kill Your Senators” Video Online

In United States v. Hunt, No. 21-3020 (2d Cir. Sept. 20, 2023) (Walker, joined by Parker and Bianco), the Circuit affirmed Hunt’s conviction and sentence for threatening to assault and murder United States officials, in violation of 18 U.S.C. § 115(a)(1)(B), based on Hunt’s online posting of a video entitled “Kill Your Senators.” In the video, which was posted on January 8, 2021, Hunt said, among other things: “We need to go back to the U.S. Capitol when all of the Senators and a lot of the Representatives are back there and this time we have to show up with our guns and we need to slaughter these motherfuckers …. If anybody has a gun, give me it. I will go there myself and shoot them and kill them.”

The Circuit held:

  1. The evidence was sufficient. In so holding, the Circuit rejected Hunt’s argument for application of the “constitutional
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Wednesday, March 8th, 2023

Second Circuit Vacates §§ 924(c) And 924(j) Convictions Predicated On Attempted Hobbs Act Robbery, But Affirms § 924(c) Conviction Predicated On VICAR Assault With A Deadly Weapon.

In two direct appeals, the Second Circuit  addressed follow-on issues arising from United States v. Taylor, 142 S. Ct. 2015 (2022) (holding that attempted Hobbs Act robbery is not an 18 U.S.C. § 924(c)(3)(A) crime of violence).

In United States v. Collymore, No. 19-596 (2d Cir. March 7, 2023) (per curiam) (Sullivan, Park, Nardini), the Circuit, on direct appeal, vacated 18 U.S.C. §§ 924(c) and 924(j)(1) convictions predicated on attempted Hobbs Act robbery in light of Taylor. Taylor itself required vacatur of the § 924(c) conviction, and the Circuit reasoned that because a § 924(c) violation is an element of a § 924(j)(1) offense, Taylor also required vacatur of the latter conviction.

However, the Circuit rejected, on plain-error review, Collymore’s argument that his guilty plea was invalid. At Collymore’s Rule 11 colloquy, the magistrate judge had advised him—correctly, under pre-First Step Act law—that his §§ …

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Thursday, December 8th, 2022

The Second Circuit holds that N.Y. Attempted Third-Degree Sale of a Controlled Substance, N.Y.P.L. 220.39(1) is NOT a Guidelines Controlled Substance Offense

Earlier this week, on December 6, 2022, the Second Circuit held in United States v. Gibson, No. 20-3049 (2d Cir. Dec. 6, 2022), that a 2002 New York state conviction for attempted third-degree criminal sale of a controlled substance, NYPL 220.39(1) and 110.00, is not a  “controlled substance offense” under the Guidelines.

Gibson was convicted in the WDNY of bank robbery and other offenses. The PSR classified him as a career offender, based in relevant part on a 2002 New York state conviction for attempted third-degree criminal sale of a controlled substance. Gibson objected, arguing that the New York offense did not categorically involve a federally controlled substance, as required under United States v. Townsend, 897 F.3d 66 (2d Cir. 2018). Specifically, Gibson argued, New York’s 2002 drug schedules included the opium derivative naloxegol, but in 2015, the federal government had removed that substance from the federal schedules. …

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Friday, April 29th, 2022

Second Circuit: State Court’s Erroneous Denial Of Defendant’s Peremptory Strike Is Not Grounds For Federal Habeas Corpus Relief

In Murray v. Noeth, No. 20-3136 (2d Cir. Apr. 26, 2022), the Circuit (Nardini, joined by Sack and Park), held that a state trial court’s erroneous denial of a defendant’s peremptory strike does not violate the federal Constitution under Rivera v. Illinois, 556 U.S. 148 (2009), and therefore cannot support federal habeas corpus relief.

Murray was tried in New York state court for murder. After he exercised a number of peremptory strikes against male prospective jurors, the People raised a “reverse-Batson” challenge, arguing that Murray’s strikes were discriminating on the basis of sex. The state trial court sustained the People’s challenge and disallowed two strikes, restoring two men to the jury. Murray was convicted and the state appellate courts affirmed.

Murray filed a federal habeas corpus petition, contending that the state trial court had erred in sustaining the People’s reverse-Batson challenge. Specifically, Murray argued that …

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Friday, January 28th, 2022

Circuit Vacates LIBOR-Rigging Convictions For Insufficient Evidence

In United States v. Connolly, No. 19-3806 (2d Cir. Jan. 27, 2022), the Circuit (Kearse, joined by Cabranes and Pooler) reversed convictions for substantive wire fraud and for conspiracy to commit wire fraud and bank fraud for insufficient evidence.

This is a LIBOR-rigging prosecution. LIBOR (the “London Interbank Offered Rate”) was an interest-rate benchmark, published daily by the British Bankers’ Association (“BBA”), meant to reflect the rates at which one bank could borrow money from other banks. LIBOR also provided a reference interest rate for use in transactions between banks. The daily LIBOR for each currency was computed based on submissions from a panel of selected banks active in the interbank market for that currency. For example, to compute the U.S. currency LIBOR at issue here, the BBA instructed each of the 16 banks on the panel to submit “the rate at which it could borrow funds, were it …

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Thursday, January 27th, 2022

Second Circuit Affirms El Chapo’s Conviction

In United States v. Beltran Leyva (Guzman Loera), No. 19–2239 (2d Cir. Jan. 25, 2022), the Circuit (Newman, joined by Lynch and Park) affirmed the conviction of Guzman Loera (“El Chapo”), the former leader of the Sinaloa Cartel, for conducting a continuing criminal enterprise, and for drug trafficking, firearms, and money laundering offenses. The Circuit rejected all 10 of Guzman Loera’s appellate claims:

1) Guzman Loera lacked standing to raise the claim that the indictment violated the international law doctrine of specialty (which provides that an extradited defendant can only be tried for offenses described in the extradition treaty and charged in the extradition proceedings). Under United States v. Barinas, 865 F.3d 99 (2d Cir. 2017), the U.S.-Mexico Extradition Treaty does not confer on extradited defendants individual rights to assert violations of the Treaty, and Mexico waived any specialty objection to Guzman Loera’s prosecution in the EDNY.

2) …

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Monday, June 28th, 2021

Second Circuit Vacates 18 U.S.C. § 924(c) Conviction Based On Both Valid And Invalid Predicate Offenses.

In United States v. Heyward, the Circuit (Wesley, joined by Pooler and Carney), the Second Circuit vacated an 18 U.S.C. § 924(c) conviction that was based on both valid and invalid predicate offenses.

Heyward was convicted following a jury trial of three counts: (1) racketeering conspiracy, 18 U.S.C. § 1962(d); (2) drug conspiracy, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846; and (3) possessing/aiding and abetting the possession of a firearm during and in relation to either the Count One racketeering conspiracy or the Count Two drug conspiracy. By special verdict, the jury found that the pattern of racketeering activity supporting the Count One conviction encompassed both murder conspiracy and drug conspiracy. In addition, the jury found that the firearm possessed in Count Three was discharged in furtherance of the Count One racketeering conspiracy, but not the Count Two drug conspiracy. The district court (Englemayer, SDNY) sentenced Heyward to 120 …

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Friday, May 7th, 2021

Second Circuit: 21 U.S.C. § 848(e)(1)(A) Is Not A “Covered Offense” For Purposes Of First Step Act Resentencing.

In United States v. Gilliam, the Second Circuit (Nardini, joined by Katzmann and Wesley), held that drug-related murder, in violation of 21 U.S.C. § 848(e)(1)(A), is not a “covered offense” for purposes of First Step Act resentencing.

Gilliam killed a rival drug dealer and pleaded guilty to § 848(e)(1)(A), which punishes “any person engaging in an offense punishable under [21 U.S.C. § 841(b)(1)(A)] … who intentionally kills or counsels, commands, induces, procures, or causes the intentional killing of an individual and such killing results.” The district court (Gleeson, EDNY) sentenced him to 528 months.

Gilliam moved for a sentence reduction under § 404(b) of the First Step Act, which provides: “A court that imposed a sentence for a covered offense may … impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act … were in effect at the time the covered offense was committed.” …

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Thursday, March 4th, 2021

En Banc Second Circuit: New York First-Degree Manslaughter Is An ACCA/Guidelines Crime Of Violence.

In United States v. Scott, the en banc Second Circuit held that New York first-degree manslaughter, in violation of N.Y. Penal Law § 125.20(1) (applicable to one who “with intent to cause serious physical injury to another person, … causes the death of such person or of a third person”), is a categorical crime of violence under the force clauses of ACCA, 18 U.S.C. § 924(e)(2)(B)(i), and the career-offender Guideline, U.S.S.G. § 4B1.2(a)(1).

Scott was sentenced pursuant to ACCA and the career-offender Guideline based, in part, on two prior New York first-degree manslaughter convictions. Following Johnson v. United States, 576 U.S. 591 (2015), the district court (Swain, SDNY) granted Scott’s 28 U.S.C. § 2255 motion and resentenced him. The district court concluded that New York first-degree manslaughter does not categorically involve the “use” of violent physical force, as required by §§ 924(e)(2)(B)(i) and 4B1.2(a)(1), because under New York …

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Wednesday, March 3rd, 2021

Second Circuit: Completion of Prison Sentence Moots Appeal from Denial of Compassionate Release Motion

In United States v. Chestnut, the Second Circuit (Sullivan, joined by Cabranes and Raggi) dismissed as moot a defendant’s appeal from the denial of his compassionate release motion, where the defendant had completed his sentence, and had “neither requested that the district court reduce his term of [supervised release] nor advanced any arguments to suggest that such a reduction is warranted.”

Chestnut sought compassionate release based on (i) his need to care for his children after their removal from their mother’s custody; and (ii) his medical conditions, which placed him at risk of severe illness from COVID-19. The district court (Daniels, SDNY) denied the motion. While Chestnut’s appeal was pending, he was released from BOP custody.

The Circuit concluded that the appeal was moot because Chestnut only sought a reduced prison sentence, and his prison sentence was now complete. In some cases, the Circuit said, “an appeal challenging a …

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Thursday, October 15th, 2020

Fourth Circuit: Attempted Hobbs Act Robbery Is Not A 924(c) Crime Of Violence

In United States v. Taylor, the Fourth Circuit became the first court of appeals to hold that attempted Hobbs Act robbery is not a crime of violence under 18 U.S.C. § 924(c)(3)(A)’s elements clause.

Taylor granted a successive 28 U.S.C. § 2255 motion and vacated the movant’s § 924(c) conviction, which had been predicated on both conspiracy to commit Hobbs Act robbery (not a crime of violence under Fourth Circuit precedent, nor under the Second Circuit’s decision in United States v. Barrett, 937 F.3d 126 (2d Cir. 2019)); and (attempted Hobbs Act robbery.

Taylor reasons that one may attempt Hobbs Act robbery by (i) intending to commit a robbery through a threat of force, and (ii) taking a nonviolent substantial step toward that objective, such as planning the robbery or reconnoitering the target. “Where a defendant takes a nonviolent substantial step toward threatening to use physical force—conduct that …

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