Archive | guideline

Thursday, May 5th, 2016

District Court Plainly Erred by Using a Guideline Unsupported by the Facts, Even Where the Parties Stipulated to that Guideline in a Plea Agreement

In United States v. Rendsland, Docket No. 14-3942-cr, a summary order issued today, the Circuit ruled that the district court committed plain error in relying on U.S.S.G. § 2A2.2 (“Aggravated Assault”) to calculate Mr. Rendsland’s Guideline range, rather than § 2A2.4 (“Obstructing or Impeding Officers”), even though the parties had stipulated that this was the applicable Guideline in a plea agreement. (Disclosure: Ed Zas of the Federal Defenders of New York submitted an Amicus brief raising this argument on Mr. Rendsland’s behalf). This was so because nothing in the record showed that Mr. Rendsland committed “aggravated assault,” defined in Application Note 1 of § 2A2.2 as a “felonious assault that involved (A) a dangerous weapon with intent to cause bodily injury (i.e., not merely to frighten) with that weapon; (B) serious bodily injury; (C) strangling, suffocating, or attempting to strangle or suffocate; or (D) an …


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Categories: guideline, sentencing findings

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Friday, April 22nd, 2016

Second Circuit Updates – April 22, 2016

After this week’s Supreme Court decision in Welch v. United States, — S. Ct. –, slip op. (April 18, 2016) (No. 15-6418), which found that Johnson v. United States, 135 S. Ct. 2551 (2015) is retroactive to those serving Armed Career Criminal sentences, the next big question is whether the rule in Johnson will apply retroactively to career offender guidelines cases. (Quick reminder: Johnson struck down the “residual clause” in ACCA as void-for-vagueness. Identical or nearly-identical language to the residual clause pops up in many other sentencing statutes and guidelines). Welch gives some cause for hope. In an amicus brief filed yesterday in support of petitioner Alfrederick Jones for a writ of certiorari to the Supreme Court (Alfrederick Jones v. United States, No. 15-8629), the Federal Public and Community Defenders and the National Association of Federal Defenders laid out the case for why the Supreme Court …


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Categories: ACCA, career offender, crime of violence, guideline, retroactivity

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Tuesday, April 5th, 2016

Second Circuit Updates – April 5, 2016

There were no opinions in criminal cases from the Circuit this day.  The Circuit issued a single summary affirmance in United States v. Miller, No.15-108-cr, where it rejected the defendant’s claim that his 144-month – but nevertheless below-Guidelines – sentence was substantively unreasonable.

United States v. Miller, No.15-108-cr:

Miller was convicted of a  drug distribution conspiracy ( 21 U.S.C. § 846)  involving a (b)(1)A)-quantity of drugs — i.e., 21 U.S.C. § 841.  The drugs were more than 1,000 kilograms of marijuana.  He committed the offense “while on supervised release from a prior conviction for cocaine trafficking and firearms possession.”  His sole contention on appeal, according to the Circuit, was that his 144-month prison sentence, which was a downward variance from a Guidelines range of 151 to 188 months, “was substantively unreasonable the because the only reasonable sentence is one at the statutory minimum of 120 months’ …

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Categories: guideline, marijuana

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Categories: guideline, marijuana

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Sunday, September 23rd, 2007

Notice No-No’s

United States v. Hargrove, No. 06-4276-cr (2d Cir. August 16, 2007) (Feinberg, Calabresi, Wesley, CJJ).

Terrence Altman had pled guilty to a drug misdemeanor (yes, there are drug misdemeanors), but violated his supervised release by using cocaine. While awaiting sentencing on that violation, he tested positive again. He admitted to that violation as well and, in all, faced a three to nine month revocation range. However, Judge McMahon sentenced him to one year in prison, without giving notice of her intention to upwardly depart.

On appeal, he argued that he should have been entitled to notice of the court’s intention to impose a sentence higher than recommended by the Chapter 7 policy statements. The Circuit affirmed.

The court began by noting that, ten years ago, it had held that there was no right to such notice, because revocation sentences are governed by Chapter 7 policy statements, and these non-binding policy …


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Categories: departure, guideline, notice, policy statement, supervised release, Uncategorized

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