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Thursday, June 16th, 2016

Defendants bat 0-3 in the Circuit today

The Second Circuit issued three summary orders in criminal cases today.

In United States v. Clare, 15-1601, the Court affirmed the defendant’s conviction on marijuana and gun charges.  Clare argued that the evidence at trial was insufficient to sustain the convictions, primarily because the cooperating witnesses were not credible. The Court rejected this argument, explaining that “the credibility of witnesses is within the province of the jury, not this Court.”  Order at 2.  In light of the remaining evidence, the Court held that a reasonable juror could have concluded that Clare was guilty beyond a reasonable doubt.  Because the evidence was sufficient, Clare’s attorney was not ineffective in failing to move for a judgment of acquittal in post-trial briefing.  The Court also affirmed the district court’s denial of a motion to suppress.

In United States v. Washington, 14-4740, the Circuit rejected the defendant’s assertion that he had been …

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Categories: comptency, sentencing, sufficiency

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Tuesday, June 14th, 2016

How Severe is Too Severe (for Production of Child Porn)?

“Serious nonhomicide crimes may be devastating in their harm[,] but in terms of moral depravity and of the injury to the person and to the public, they cannot be compared to murder in their severity and irreovocability.”  So said the Second Circuit today in United States v. Brown, No. 13-1706-cr (June 14, 2016)  (quoting the Supreme Court decision in Graham v. Flordia, 560 U.S. 48, 69 (2010)), in remanding a 60-year sentence for production of child pornography on procedural grounds that look awfully substantive.  The opinion contains must-use language for advocates at sentencing for a less-than-extreme sentence in any non-homicide case.

The majority opinion (written by J. Pooler with J. Sack signing on) found that the District Court (J. Sharpe, NDNY) may have misunderstood certain facts in imposing a virtual life sentence for photographing and disseminating sexual images of three young girls and possessing thousands of other images of …

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Categories: child pornography, procedural reasonableness, sentencing, substantive reasonableness, Uncategorized

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Wednesday, May 25th, 2016

Judge Block Issues Opinion Calling for Reconsideration of Collateral Consequences for Felony Convictions and Highlighting the Role Collateral Consequences Should Play in 3553(a) Analysis

Senior Eastern District Judge Frederic Block issued a 42-page opinion in United States v. Nesbeth, 15-CR-18(FB),  calling for a close reexamination of the collateral consequences that follow felony convictions, the ways these consequences hamper rehabilitation efforts, and their inclusion as a factor in determining the appropriate sentence under 18 U.S.C. 3553(a).  (N.B. Ms. Nesbeth was represented by Amanda David and the Eastern District Office of the Federal Defenders of New York.)

Following a jury trial in the case, Judge Block imposed a one-year probationary sentence in a case with a guidelines range of 33-41 months.  He then issued the lengthy opinion because “sufficient attention has not been paid at sentencing” to the many automatic collateral consequences that flow from a defendant’s felony conviction.  Many of these consequences, he wrote, “serve no useful function other than to further punish criminal defendants after they have completed their court-imposed sentences” but their …

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Categories: collateral consequences, sentencing

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Monday, May 2nd, 2016

Second Circuit rejects claims that District Court erred in limiting cross-examination of prosecution witness and committed various procedural errors at sentencing.

United States v. Rodriguez, No. 14-4267 (2d Cir. Apr. 27, 2016) (Leval, Droney, and Engelmayer).

Rodriguez was convicted by a jury of charges of racketeering conspiracy and conspiracy to distribute narcotics. He argued on appeal that the district court erred by disallowing certain cross-examination of a key prosecution witness, and that the district court committed various procedural errors at sentencing. The Court affirmed.

(a) Cross-examination.

Before trial, the government moved to preclude the defense from cross-examining a key government witness at trial about certain sexual offenses he had committed. Defense counsel argued that the evidence bore upon the witness’s credibility but the district court excluded it under Fed. R. Evid. 403.

The Circuit held that the district court had properly balanced the relevant factors under Rule 403 and had noted that the witness disclosed his sexual misconduct to the government, which undermined the defense’s argument that his sexual …

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Categories: Rule 403, sentencing, Uncategorized

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Thursday, March 24th, 2016

SDNY Update: Judge Kaplan Finds Career Offender Guideline Range Too High, Imposes Sentence Based on Offense-Specific Guideline

Yesterday in the SDNY, Judge Lewis A. Kaplan found that the career offender guidelines overstated the seriousness of the offense in a case involving a conviction under 21 U.S.C. 841(b)(1)(C), and that a sentence within the career offender guideline range of 151-188 months would have resulted in a sentence greater than necessary to achieve the statutory sentencing objectives. Instead, Judge Kaplan imposed a sentence within the 30-37 month guideline range that would have applied, under U.S.S.G. 2D1.1, absent the career offender guideline. The case was United States v. John Cole, 15 Cr. 197 (LAK).

 …

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Categories: career offender, sentencing

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Wednesday, March 16th, 2016

Second Circuit Updates – March 16, 2016 – Home Confinement as Condition of Supervised Release, Sentencing Enhancement for Using Gun in a Robbery, Scope of Cross Examination

Three short summary orders today:

First up, United States v. Fiume: In this case, the sentencing court imposed “GPS tracking” as a condition of Mr. Fiume’s supervised release, but never stated that it was also imposing home detention, a “separate and additionally burdensome condition.” Nonetheless, a condition of home detention appeared in Mr. Fiume’s written judgment. The circuit vacated the home detention condition and remanded for the written judgment to be corrected. The circuit otherwise upheld Mr. Fiume’s 10-month prison sentence as reasonable.

Next up, another sentencing case, United States v. Crum. Here, Mr. Crum argued that the sentencing court should not have enhanced his weapon possession sentence on the basis that the weapon had been used in a robbery. The circuit disagreed, finding the enhancement was not clearly erroneous based on a witness’s 911 calls about a gunpoint robbery by two men, one wearing black and one …

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Categories: cross-examination, sentencing, supervised release

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Sunday, June 3rd, 2012

Cash Cow

United States v. Wagner-Dano, No. 10-4593-cr (2d Cir. May 14, 2012) (Winter, Livingston, CJJ, Rakoff, DJ)

Melissa Wagner-Dano was a bookkeeper in upstate New York, where she worked for a small town and two large dairy farm cooperatives. She stole more than $1 million from her employers through unauthorized withdrawals from their bank accounts, using used the money for various personal projects. Wagner-Dano covered her tracks by transferring funds among the employers’ accounts. As the scheme unraveled, she blamed the missing funds on computer errors, then repaid some of the money from her personal bank account. Finally, she threw in the towel, admitted her crime and pled guilty to wire fraud.

On appeal, she claimed that several errors in her presentence report rendered her 78-month, top-of-the-range sentence procedurally unreasonable. Wagner-Dano had detailed these objections to the Probation Department, which had explained them in the addendum to the report, but …

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Categories: plain error, sentencing, Uncategorized

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Tuesday, August 19th, 2008

Ratio Days

United States v. Keller, No. 07-3330-cr (2d Cir. August 14, 2008) (Miner, Cabranes, CJJ, Berman, DJ)

This case provides an important clarification of the procedure that the court set out earlier this year in United States v. Regalado, 518 F.3d 143 (2d Cir. 2008). In that case, the court held that a remand was warranted on appeals of pre-Kimbrough crack sentencings where the defendant did not ask for a variance based on the 100-to-1 penalty ratio, because there would be no way for the circuit to know whether the district court would have imposed a different sentence if it knew that it had the discretion to do so.

Here, the district judge gave a two-level sentence reduction to match the anticipated amelioration of the crack sentencing guidelines, but did not specifically acknowledge its discretion to consider the crack-powder sentencing disparity as the basis for imposing a non-guideline sentence. The circuit …

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Tuesday, July 8th, 2008

CASH AS CACHE CAN

United States v. Jones, No. 05-5879-cr (2d Cir. June 24, 2008) (Leval, Cabranes, Raggi, CJJ)

In 2004, Jones was present in a “gatehouse” – an apartment used solely for the purpose of selling drugs – when Rochester police executed a search warrant. The officers found, inter alia, twenty-two grams of crack residue and $883 in cash hidden in the apartment. Jones admitted “selling a little.” Despite this admission, the jury convicted him only of simple crack possession.

At sentencing, the court held him accountable for possessing forty-seven grams of crack. This comprised the twenty-two grams of crack residue, plus an estimated twenty-five additional grams, which was based on the probable amount that Jones had sold to realize the $883.

The Appeal

Drug Quantity

On appeal, Jones argued, primarily, that it was unreasonable for the court to translate the money into drugs for the purposes of calculating drug quantity under the …

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Categories: discretion, drug quantity, sentencing, Uncategorized

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Friday, May 9th, 2008

Quantum Mechanics

United States v. Martinez, No. 06-5502-cr (2d Cir. May 9, 2008) (per curiam).

In this brief per curiam, the court reaffirms that there is only one quantum of proof necessary for sentencing enhancements post-Booker – the preponderance standard.

Specifically, the court rejected Martinez’ argument that where the enhancement requires the sentencing judge to determine that the defendant committed a separate offense (here, the 4-level bump under § 2K2.1(b)(6) for using a gun in connection with another felony offense), those facts should be proven beyond a reasonable doubt. The circuit noted that the district court did not sentence Martinez for the other offense; it merely determined that the separate offense was relevant to the sentence to be imposed on the offense of conviction, and that Martinez did not receive a sentence longer than the applicable statutory maximum.…

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Friday, May 2nd, 2008

Rejection Letter

United States v. Negron, 06-3614-cr (2d Cir. April 24, 2008) (Jacobs, Kearse, Pooler, CJJ) (per curiam)

Defendant Silverio, who was sentenced to 272 months (22 years, 8 months) in prison, had been offered, and rejected, a plea agreement with a binding sentencing recommendation of 17 years. On appeal, he argued that district court erred in refusing to consider the terms of the rejected agreement at sentencing.

Not surprisingly, the appellate court disagreed. There is nothing in § 3553(a) – or circuit precedent – that requires a district court to do so. Accordingly, finding no substantive or procedural defect with the sentence, the court affirmed.

…

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