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 …
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
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 …
Categories: marijuana, sentencing, sentencing findings, supervised release
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 …
It’s been a busy week for the Second Circuit. On Wednesday, the Circuit reversed a sentence imposing a life term of supervised release for a defendant who had initially been convicted of drug offenses. See United States v. Brooks, No. 16-4063 (2d Cir. 2018) (per curiam) (Parker, Lynch, Chin) (appeal from Kaplan, J., SDNY). The opinion, available here, contains great language for use at sentencings and appeals.
The defendant in Brooks had initially pled guilty to distributing and possessing with intent to distribute cocaine and heroin, in violation statutes including 21 U.S.C. § 841(a)(1). After release from prison, he was charged with numerous supervised release violations, and pled guilty to violating three conditions related to drug use. At his revocation hearing, the defendant’s attorney noted the defendant’s “serious drug problem” as a “huge underlying and contributing factor” to his violations. Neither the government nor Probation recommended a specific …
Categories: drug distribution, procedural reasonableness, sentencing, substantive reasonableness, supervised release
Today, in a short opinion, the Second Circuit confirmed that second-degree robbery in New York is categorically a crime of violence under the residual clause of the pre-2016 Career Offender Guideline (COG). See U.S.S.G. § 4B1.2 (2015). The opinion in United States v. Smith, No. 15-3313 (2d Cir. 2018) (Winter, Cabranes, Restani) (appeal from Failla, J., SDNY), is available here.* (A separate panel reached the same conclusion, with less analysis, earlier this week in United States v. Dove.)
Its decision, the Smith panel held, was compelled by Jones II, where the Second Circuit held that under Beckles first-degree robbery is a crime of violence under the pre-2016 COG’s residual clause. See Smith, slip op. at 9-10 (“The rationale of Jones is directly applicable to this case. In New York law, the first element of second-degree robbery is the same as the first element of …
Categories: career offender, categorical approach, crime of violence, Johnson, robbery, sentencing
Yesterday, the Second Circuit held that a Guidelines recalculation pursuant to a motion to reduce a sentence must account for Guidelines’ grouping rules that, when applied, leave the defendant’s amended Guidelines range unchanged. See United States v. Carosella, No. 17-896 (2d Cir. 2018) (per curiam) (Walker, Lynch, Chin), opinion available here. Unfortunately, this holding may affect a number of cases where a defendant seeks a sentencing reduction under 18 U.S.C. § 3582(c) in light of the 2014 changes to the Guidelines’ sentencing levels for drug offenses.
Mr. Carosella was convicted and sentenced in 2011 to three concurrent, 120-month terms of imprisonment for (1) conspiracy to distribute cocaine base and heroin, (2) conspiracy to commit armed robbery, and (3) conspiracy to burglarize pharmacies. In 2016, he moved to reduce his sentence pursuant to 18 U.S.C. § 3582(c), because Amendment 782 to the Guidelines lowered the base offense level for …
The Federal Defenders Guidelines and Legislative Committees have released a fact sheet, available here, critiquing a recent Sentencing Commission report which concludes that racial disparities in sentencing have increased in the wake of Booker.
In November 2017, the Sentencing Commission released a report concluding that “the gap between the sentence lengths for Black and White male offenders [has] increas[ed]”post-Booker. Opponents of discretionary sentencing have cited (and misused) this finding to argue for mandatory sentencing regimes. The Federal Defenders’ fact sheet takes issue with the Commission’s failure to address some recurrent criticisms of the statistical model it uses to reach its conclusions. These include the Commission’s failure to account for the racially disparate impacts of (1) mandatory minimums, (2) prosecutors’ charging and bargaining decision, and (3) certain sentencing guideline provisions. As the fact sheet explains:
Racial disparity is a serious problem in the federal criminal justice system.
Today the Second Circuit issued an opinion vacating a 60-month illegal reentry sentence as both procedurally and substantively unreasonable. The opinion in United States v. Latchman Singh, No. 16-1111 (Kearse, Hall, Chin) (appeal from Forrest, J., SDNY), is available here. Judge Chin’s opinion touches on a number of recurring sentencing issues, and includes an important analysis of the distinction between presenting mitigating evidence and avoiding responsibility for one’s crimes.
Mr. Singh pleaded guilty to one count of illegal reentry after being removed following an aggravated felony conviction, see 8 U.S.C. § 1326(b). His record includes a number of convictions for non-violent offenses, several of which occurred more than a decade ago. The 15-21 Guidelines range for Mr. Singh’s sentence reflected a 3-level reduction for acceptance of responsibility. Prior to sentencing, he wrote a letter to the district court expressing remorse his actions and explaining the pressures that …
Categories: acceptance of responsibility, illegal reentry, procedural reasonableness, sentencing, sentencing findings, substantive reasonableness
Today Eastern District Judge Weinstein issued a carefully researched opinion explaining the relatively lengthy—and in one case statutorily mandated—sentences of three adolescent defendants who each pled guilty to one count of brandishing a firearm. The opinion, available here, includes a balanced and detailed critique of the current methods to punish and rehabilitate young offenders who commit violent crimes, but for whom lengthy prison sentences are not necessarily appropriate.
From Judge Weinstein’s opinion:
Defendants—all adolescents—were gang-members, typically from impoverished and broken families.
They present the court with a number of troubling sentencing issues: (1) the need to prevent future acts of violence by gang members who, because of their home environment, and past affiliations, may be unable to escape the strictures of gang control; (2) the requirement that a sentencing court consider a defendant’s age, potential for rehabilitation, and culpability when crafting a sentence; (3) the limited ability of the
Categories: mandatory minimum, sentencing, sentencing findings, youthful offender adjudication
Yesterday the Federal Defenders Legislative Reform Committee sent a letter in support of legislation to reform federal mandatory sentencing laws. The letter, available here, urges the Senate Judiciary Committee to support two modest attempts to reduce mandatory minimums and constrain unchecked prosecutorial charging power: (1) The Sentencing Reform and Corrections Act of 2017 (S. 1917) and (2) The Smarter Sentencing Act of 2017 (S. 1933). In detail, the letter describes how mandatory minimums are used to coerce low-level offenders into forgoing their trial rights, while enabling more serious offenders to avoid the punishments that Congress.
The letter’s subject headings offer a helpful synopsis of the Legislative Reform Committee’s position:
I. The Human and Financial Costs of the Current Mandatory Minimum Laws Are Unjustified.
II. Real Reform Is Necessary to Prevent the Use of Mandatory Minimums for Purposes for Which They Were Not Intended.
A. Sentences Intended for Kingpins and