Author Archive | Peggy Cross-Goldenberg

Wednesday, May 8th, 2019

Second Circuit Upholds ACCA Sentence

In United States v. Evans, the Second Circuit upheld a sentence imposed pursuant to 18 U.S.C. 924(e)(2)(B), the Armed Career Criminal Act (“ACCA”). As the Court described it, the case presented “the latest entry in a series of cases defining offenses that qualify as ‘violent felonies'” for the purposes of ACCA’s sentencing enhancement. The Court held that North Carolina second-degree burglary qualifies as a violent felony under ACCA’s “enumerated clause” and that federal bank robbery in violation of 18 U.S.C. 2113(a) qualifies as a violent felony under ACCA’s “elements clause.” You can read the Evans opinion here. …


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Categories: ACCA, crime of violence, Johnson

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Circuit Vacates Special Condition of Supervised Release

The Second Circuit today vacated a special condition of supervised release and remanded for further proceedings. In United States v. Smith, which you can read here, the Circuit relied on its recent decision in United States v. Betts, 886 F.3d 198, 202 (2d Cir. 2018). In Betts, the Court held that “A District Court is required to make an individualized assessment when determining whether to impose a special condition of supervised release, and to state on the record the reason for imposing it.” Where the district court does not give the reason, the special condition can survive appeal “only if the district court’s reasoning is ‘self-evident in the record.'” Opinion at 3 (quoting Betts). In Smith, the district court imposed a special condition that prohibited Smith from consuming alcohol, but made no individualized assessment in determining whether to impose that condition. The district court’s comment …


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Categories: supervised release, Uncategorized

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Wednesday, April 17th, 2019

Judge Rakoff Limits Government’s Description of Stock Market as “Level Playing Field”

Prior to opening statements in United States v. Pinto-Thomaz, 18 Cr. 579 (JSR), Southern District Judge Jed S. Rakoff precluded the government from giving a jury the standard line that the stock market should be a “level playing field.” According to this report from Law360.com, Judge Rakoff said, “Anyone who thinks the stock market is a level playing field obviously has no contact with reality.” He permitted the government to argue that the defendant “conferred an ‘illegal advantage'” through tips. …


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Categories: insider trading, Uncategorized

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Thursday, April 11th, 2019

Credit Union Robbery is a Crime of Violence for the Purposes of 18 U.S.C. 924(c)

Today, in United States v. Hendricks, the Second Circuit held that robbery of a credit union, in violation of 18 U.S.C. 2113(a), is a “crime of violence” for the purposes of 18 U.S.C. 924(c). The Circuit said it had “little difficulty in holding that bank robbery committed ‘by intimidation’ categorically constitutes a crime of violence for the purposes of [Section] 924(c)(1)(A).” Opinion at 15.

Stay tuned for a more detailed discussion of Henricks.…


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

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Enhancement under U.S.S.G. 2A6.2(b)(1)(A) for “violation of a court order of protection” does not apply if the defendant was not served as required by law

In United States v. Thompson, the Second Circuit remanded for resentencing. At sentencing, the District Court determined that the two-level enhancement under U.S.S.G. 2A6.2(b)(1)(A) for “violation of a court order of protection” applied because Mr. Thompson had been “on notice of the issuance” of an order of protection. But Mr. Thompson had not been served with the order in compliance with state law. A state court ex parte order of protection may provide the basis for the application of the enhancement where that order was issued: (1) by a court with personal jurisdiction over both the petitioner and the respondent; (2) by a court with jurisdiction over the subject matter; (3) in compliance with federal procedural due process protections; and (4) in compliance with state time limits regarding notice and opportunity to be heard. Opinion at 8. Here, the court that issued the order of protection did not have …

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Categories: sentencing

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Categories: sentencing

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Tuesday, March 5th, 2019

New York Penal Law 130.45 Not a “Prior Sex Offense” Under the Categorical Approach

Today the Second Circuit applied the categorical approach and vacated a life sentence. In United States v. Kroll, the Circuit held that under the categorical approach, the defendant’s 1993 conviction under New York Penal Law 130.45 did not constitute a “prior sex offense” as defined by 18 U.S.C. 3559(e)(1), and thus did not trigger a mandatory life sentence, because the state statue sweeps more broadly than its federal equivalent.

For a prior state conviction to count as a “prior sex offense,” it must “‘consist[] of conduct that would be a Federal sex offense’ if there were a basis for Federal jurisdiction.'” Opinion at 10. The Circuit held that a district court must employ the categorical approach when determining whether the state statute consists of conduct that would be a Federal sex offense. Under the categorical approach, courts “ask[] whether the least of conduct made criminal by the state statute …


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Categories: categorical approach, sex offenses

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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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Monday, September 10th, 2018

Second Circuit decides Barrett

On the heels of its Pereira-Gomez decision on Friday, the Second Circuit issued a new opinion in United States v. Barrett, which is available here.

In Barrett, the Circuit held that 18 U.S.C. 924(c)(3)(B) is not unconstitutionally vague because “factfinding as to the violent nature of the predicate offense and the risk of physical force in its commission can be made by the trial jury in deciding the defendant’s guilt, thus avoiding both the Sixth Amendment and due process vagueness concerns at issue in Dimaya and Johnson.”  The Court held that the fact that Barrett’s jury did not make a finding regarding force was harmless error in light of the specific facts of his case.  The Circuit further held that a Hobbs Act Robbery conspiracy is a crime of violence because the object of the conspiracy, the Hobbs Act Robbery, is a crime of violence.  “[T]his …


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Categories: 924(c), conspiracy, crime of violence, Johnson

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Friday, August 17th, 2018

Judge Carter Issues Lengthy Opinion Justifying Bail Grant

If you’re looking for some inspiring beach reading this weekend, look no further than this opinion in United States v. Paulino. On appeal by the government, S.D.N.Y. Judge Andrew Carter upheld the Magistrate’s decision to set bail in Mr. Paulino’s case. The government appealed to the Second Circuit, which remanded with instructions for Judge Carter to elaborate his rationale for granting bail. Today, he issued this memorandum opinion discussing the history of bail in American courts; the presumptions, burdens and standards of proof that apply to bail decisions; and how imposing conditions of release can mitigate the risk of flight and danger to the community.

NB: The Federal Defenders represents Mr. Paulino.…


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Categories: bail, Uncategorized

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