Federal Defenders of New York Second Circuit Blog


Monday, October 30th, 2023

Five Second Circuit Judges Dissent From Denial Of Rehearing En Banc On Whether RICO Predicate Offenses Must Be Factually Set Forth In The Indictment.

In United States v. Montague, __ F.4th __, 2023 WL 6852846 (2d Cir. Oct. 18, 2023), Judge Perez, joined by Judges Lee, Robinson, Nathan, and Merriam, dissented from the Circuit’s denial of rehearing en banc. The dissent posed the question (and answer) of “exceptional importance”: “does an indictment for a crime with predicated offenses as necessary elements require any factual detail regarding those predicate offenses? The answer, in our view, should be an easy ‘yes.’”

A divided panel of the Second Circuit (Menashi and Bianco; Jacobs dissenting) had upheld a bare bones indictment alleging the predicates – which are elements of RICO – only as “violations of Title 21 United States Code, Sections 841(a)(1) and 846″ with no factual detail. United States v. Montague, 67 F.3d 520 (2d Cir. 2023). See Blog Post, May 12, 2023. Judge Jacobs dissented on the ground that the specific acts constituting the …

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Categories: CCE, grand jury, indictment

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Tuesday, October 17th, 2023

Second circuit affirms 45-year sentence despite an “inexcusable” error

In United States v. Gates, the Second Circuit today affirmed a 45-year sentence for a person with no criminal history, who was convicted of three counts related to sexual exploitation of her child based on five images found on the child’s father’s phone. (Even though the child’s father, unlike Gates, had thousands of additional images of child pornography as well as a criminal history, he received the same sentence as Gates). The Circuit appeared completely unmoved by her argument that her sentence was substantively unreasonable, failing to engage with or even mention any facts about Gates’s personal background.

The Circuit, however, did find that the district court erred in at least two ways. First, the Circuit found that the district court improperly counted a conspiracy count as a separate group. But, the Circuit said, this error was harmless because the offense level was so high that it would still …

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Tuesday, October 3rd, 2023

Attempted Murder is a Crime of Violence (For Now)

In yesterday’s United States v. Pastore, the Circuit (Walker, Sullivan, Nathan, C.JJ.) held attempted murder in aid of racketeering – specifically, attempted New York murder – is a “crime of violence” under 18 U.S.C. § 924(c).

The Circuit reasoned that, because murder requires someone to intentionally “’cause the death of another person,'” Slip Op. at 14 (quoting N.Y. Penal Law § 125.25(1)), and because “intentionally causing the death of another person involves the use of force,” id., attempting to murder requires the “attempted use . . . of physical force against the person . . . of another.”  § 924(c)(3)(A).

The Supreme Court’s ruling in United States v. Taylor, 142 S. Ct. 2015 (2022), the Circuit said, does not compel otherwise.  The Court there held attempted Hobbs Act robbery is not a “crime of violence” given that it can be committed by means of an “…

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Friday, September 29th, 2023

Supreme Court will revisit the application of the Confrontation Clause to forensic evidence.

The Supreme Court has granted certiorari in Smith v. Arizona, No. 22-899. The question presented is:

Whether the Confrontation Clause of the Sixth Amendment permits the prosecution in a criminal trial to present testimony by a substitute expert conveying the testimonial statements of a nontestifying forensic analyst, on the grounds that (a) the testifying expert offers some independent opinion and the analyst’s statements are offered not for their truth but to explain the expert’s opinion, and (b) the defendant did not independently seek to subpoena the analyst.

Defense counsel should be sure to make Confrontation Clause objections whenever the government seeks to use or admit forensic evidence at trial without calling the individual (or all of the individuals) who actually performed all of the underlying forensic testing.

Smith will hopefully bring some clarity to this area of law. The Supreme Court has long held that criminal defendants have a …


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Friday, September 22nd, 2023

A Panel of the Second Circuit holds (over a dissent) that a non-citizen is removable for a crime involving moral turpitude “for which a sentence of one year or longer may be imposed” — under 8 U.S.C. § 1227(a)(2)(A)(i) — even though New York subsequently reduced the maximum sentence for Class A misdemeanors from one year to “364 days” and made the change retroactive. Vasquez v. Garland, No. 21-6380, __ F.4th ____ (2d Cir. Sept. 13, 2023) (C.J.J.’s Jacobs and Chin; C.J.J. Robinson dissenting).

I. Background

Under 8 U.S.C. § 1227(a)(2)(A)(i) —  which is Section 237(a)(2)(A)(i) of the Immigration and Nationality Act (“INA”) — a non-citizen “is deportable” if “convicted of a crime of moral turpitude” (committed within a specified period “after the date of admission”) “for which a sentence of one year or longer may be imposed.” (emphasis added).

“Peguero Vasquez . . . was admitted to the United States as a permanent resident in 2012.” See Opinion (“Op”) at 5. In 2017, he pleaded guilty to the New York offense of criminal possession of a forged instrument in the third degree, a Class A misdemeanor, because of “his use of a fraudulent license plate.” Op at 3-5; see N.Y. Penal Law  § 170.20.

But “[i]n 2019, the New York legislature reduced the maximum possible sentence for Class A misdemeanors … (including the forged instrument offense to which Peguero Vasquez pleaded …

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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, September 6th, 2023

Drug-distribution premises sentencing enhancement applies to dealing drugs from premises formerly used as residence

In United States v. Vinales, No. 22-331-cr (Aug. 29, 2023), the panel (Lynch, Lohier, and Bianco) issued a per curiam opinion affirming application of the drug-distribution premises enhancement of U.S.S.G. § 2D1.1(b)(12).

Vinales was charged with selling drugs out of an apartment where he had once resided, but no longer did at the time of arrest. On appeal, he argued that the two-point enhancement should not apply because he did not maintain the premises after moving out “for the purpose of manufacturing or distributing a controlled substance.” In its first published opinion on this enhancement, the Circuit relied on guidelines commentary to endorse the “totality-of-the-circumstances” test employed below. It held the enhancement was applicable, reasoning that Vinales maintained the apartment and continued to sell drugs from it once he moved out. Thus, even if he still socialized there after moving out, the district court properly determined that, at his arrest, …


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Selling cocaine in NY is not a “serious drug offense” under ACCA

Affirming Judge Koeltl, the Second Circuit has ruled in U.S. v. Minter that selling cocaine, in violation of N.Y. Penal Law § 220.39(1), is not a “serious drug offense” under the Armed Career Criminal Act, 18 U.S.C. § 924(e).

Why not?  Because “New York’s definition of cocaine is categorically broader than its federal counterpart.”  Slip Op. at 3.  Specifically, federal law “prohibits possession of only optical and geometric isomers of cocaine, while New York’s statute prohibits possession of all cocaine isomers.”  Slip Op. at 5 (emphasis in original).

The government argued Minter should have to pass the “realisitic probability” test by poining to a New York case in which the defendant was convicted for selling something other than an optical or geometric isomer of cocaine.  But the Court said no: “the New York statute applies on its face to all cocaine isomers; [federal law] does not.  ‘When the state law …

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Friday, August 11th, 2023

Another Day, Another 922(g) Section Found Unconstitutional under Bruen: this time it’s 922(g)(3) prohibiting an “unlawful” drug user from having a gun

This week, in United States v. Daniels, the Fifth Circuit held that a person’s conviction under 922(g)(3) was unconstitutional following Bruen. The facts of Daniels are straightforward: Daniels was found with guns and marijuana in his car and then admitted he was a habitual marijuana user. He was charged and convicted of violating Section 922(g)(3). The Fifth Circuit reversed, holding that history and tradition did not justify disarming a “sober citizen based exclusively on his past drug usage.”

Although 922(g)(3) isn’t a a common charge, there is helpful language in the Daniels opinion for Bruen motions under 922(g)(1). And, the steady drumbeat of 922(g) reversals will hopefully give judges pause in relying on pre-Bruen decisions without a careful analysis.

In Daniels, the government relied on the same language and history that they point to for 922(g)(1) cases. The Fifth Circuit roundly rejected those arguments. The Circuit …

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Friday, August 4th, 2023

De novo resentencing required after district court imposed a supervised-release term, following revocation, that exceeded the statutory maximum

In United States v. Sire Gaye, 2d Cir. No. 22-251-cr (August 4, 2023), the panel (Judges Park, Nardini, and Nathan) issued a per curiam opinion vacating the district court’s revocation sentence and remanded for de novo resentencing. Although only the supervised-release portion of the revocation sentence was unlawful – the five-year term exceeded the statutory maximum – the Court decided that, instead of simply lowering that term to the true maximum (18 months) and leaving alone the imprisonment portion of the sentence (three years’ imprisonment) – as the Government wanted — the district court should decide in the first instance how to apportion the imprisonment and supervised release portions of its revocation sentence on remand (as Gaye desired).

Here’s the gist. Gaye pleaded guilty to bank fraud in 2018 and was sentenced to two months’ imprisonment followed by five years of supervised release – the statutory maximum. The court …


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Thursday, July 20th, 2023

Plaintiff can pursue punitive damages related to his unlawful state supervision

In Aponte v. Perez, No. 20-2186 (2d Cir. July 20, 2023), the Second Circuit rules largely in favor of the plaintiff-appellant, who brought a civil rights suit after he was wrongfully subjected to post-release supervision.

 In 2000, plaintiff Felix Aponte was sentenced in New York State court to 8 years in prison for robbery. After sentencing, the New York State Department of Correctional Services (DOCS) “administratively added a five-year term of post-release supervision” (PRS). This practice seems obviously unconstitutional and, in 2006, the Second Circuit so held. Aponte was eventually resentenced in 2008.

In the meantime, Aponte was subject to this illegal supervision term. He was imprisoned for violating the terms of his (illegal) supervision.

Aponte, acting pro se, brought suit under 42 U.S.C. § 1983 against DOCS and others, seeking damages related to his unlawful supervision and incarceration.

The district court found a violation of Aponte’s due …

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