Federal Defenders of New York Second Circuit Blog


Friday, February 23rd, 2018

New Opinion on When a § 3582(c) Guidelines Recalculation Leaves a Defendant’s Sentencing Range Unchanged

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 …

Posted by
Categories: 3582(c)(2), sentencing

Posted By
Categories: 3582(c)(2), sentencing

Continue Reading

Guilty Pleas Do Not Bar Appeals Challenging the Constitutionality of the Statute of Conviction

The Supreme Court held this week, in Class v. United States, that a guilty plea does not inherently bar a defendant from arguing on appeal that the statute of conviction violates the Constitution.  Amy Baron-Evans of the Sentencing Resource Counsel has the details:

The Supreme Court held in Class v. United States that a guilty plea does not inherently waive a constitutional challenge to the statute of conviction. Justice Breyer wrote for the majority of six (joined by Ginsburg, Sotomayor, Kagan, Roberts, Gorsuch), and Justice Alito wrote the dissent (joined by Kennedy and Thomas).

Class was indicted by a federal grand jury in the District of Columbia for possessing firearms in his locked jeep in a parking lot on the grounds of the U.S. Capitol, in violation of 40 USC 5104(e)(1). He moved to dismiss the indictment, claiming that “the statute violates [1] the Second Amendment and [2] the …

Posted by
Categories: guilty plea

Posted By
Categories: guilty plea

Continue Reading
Friday, February 16th, 2018

Second Circuit Holds that A Criminally Culpable Corporation Is Not Entitled to Restitution for Its Employees’ Criminal Conduct

The Second Circuit issued two opinions this week on third parties’ claims for restitution and shares of criminally forfeited property from defendants. See Federal Insurance Co. v. United States & United States v. Mazer (related cases), Nos. 16-2967 & 16-3402 (2d Cir. 2017) (Parker, Lynch, Carney) (appeal from Daniels, J., SDNY), opinion available here; United States v. Ohle, No. 16-601 (2d Cir. 2017) (Leval, Calabresi, Cabranes) (appeal from Rakoff, J., SDNY), opinion available here.

The lengthier of these opinions, in Federal Insurance, brings welcome news (or at least a sigh of relief) to the sort of low-level employees to whom corporate defendants are incentivized to shift blame in white collar prosecutions. Federal Insurance concerns a corporation’s entitlement to restitution and forfeiture payments from employees who were convicted for participating in a fraud for which the corporation is criminally culpable. In part, the opinion affirms …


Posted By
Categories: CVRA, forfeiture, fraud, MVRA, restitution, victims

Continue Reading
Friday, February 9th, 2018

VOSR Sentence Declared Procedurally Unreasonable on Plain Error Review

It’s been a slow week for the Second Circuit, but today it issued a summary order reversing a sentence for violations of supervised release as procedurally unreasonable. This holding is unremarkable in light of the district court’s failure to articulate any specific reasons for the defendant’s above-Guidelines sentence. Somewhat notable, however, is the panel’s discussion of why the sentence is reversible under plain error review. The summary order in United States v. Kalaba, No. 17-328 (Katzmann, Pooler, Droney) (appeal from Preska, J., SDNY), is available here.

While on supervised release, Mr. Kalaba was arrested and indicted for several counts relating to a narcotics distribution conspiracy. He was sentenced to 84 months’ imprisonment after pleading guilty to one count and being convicted of the others at trial. While awaiting trial, the Probation Office submitted a report charging four violations of supervised release. Two violations were established by the narcotics …


Posted By
Categories: 3553(c), plain error, procedural reasonableness, supervised release

Continue Reading
Thursday, February 1st, 2018

Plain Error Reversal of Supervised Release Condition re. Alcohol

Today the Second Circuit reversed a district court’s sentence imposing as a special condition of supervised release that the defendant refrain from using any alcohol whatsoever while on supervision. The summary order in United States v. Betts, No. 17-231-cr (Leval, Calabresi, Cabranes) (appeal from W.D.N.Y.) is available here.

The defendant in Betts was originally convicted of conspiracy to commit bank fraud in violation of 18 U.S.C. § 1349. After release from prison, he pled guilty to a supervised release violation (pursuant to a plea agreement) for failing to notify his probation officer within 72 hours of arrest. The district court sentenced the defendant to ten months’ imprisonment and four months of supervised release. As a special condition of the supervised release, the court required that the defendant refrain from consuming any alcohol.

On plain error review, the Second Circuit held that the district court abused its discretion by …


Posted By
Categories: plain error, supervised release

Continue Reading
Friday, January 26th, 2018

Categorical Approach Updates from First and Ninth Circuits (Including on 2nd-Degree NY Robbery’s Status under the Career Offender Guideline)

Two valuable opinions have been published outside the Second Circuit in recent weeks:

(1) The First Circuit has  held that attempted second-degree robbery in New York is not a “crime of violence” for purposes of the Career Offender Guideline’s force clause, U.S.S.G. § 4B1.(2)(a)(1). The opinion in United States v. Steed, No. 17-1011 (1st Cir. 2018) (Barron, J.) is available here. The court’s reasoning in Steed should be familiar to those following the district court and (vacated) Second Circuit opinions reaching the same conclusion.

As its starting point, the court looked to First Circuit case law holding that purse snatching does not necessarily require the degree of force required under Johnson I. The court then considered whether, as of 2000 (the year of the defendant’s relevant conviction), such purse snatching was a violation of New York’s second degree robbery statute, NY Penal Law  § 160.10. After …


Posted By
Categories: career offender, categorical approach, conspiracy, crime of violence, drug distribution, Johnson

Continue Reading
Tuesday, January 23rd, 2018

6th Amendment Speedy Trial Right Violated In Case Raising Interesting Attorney-Client Issues

Today the Second Circuit ordered that a defendant’s indictment be dismissed with prejudice because his 6th Amendment speedy trial right was violated. The opinion in United States v. Tigano, 15-3073 (2d Cir. 2018) (Winter, Walker, Pooler), available here, is a case study in “poor trial management,” slip op at 5, and the improper use of competency hearings. (Like the Circuit’s other recent speedy trial decision, Tigano arises out of the Western District of New York.) The opinion also raises fascinating questions about the tensions that can arise between the imperatives to respect a defendant’s autonomy and act in what a lawyer believes to be the defendant’s strategic interest. In doing so, the opinion offers cautionary lessons for the government and defense counsel alike.

Mr. Tigano and his father were indicted in July 2008 as co-defendants on drug and weapons charges. He was then subjected to nearly seven …

Posted by
Categories: speedy trial

Posted By
Categories: speedy trial

Continue Reading
Friday, January 19th, 2018

Recent “Trujillo” Decisions and Resources

Today Judge Vitaliano (EDNY) dismissed an indictment with prejudice after ruling that the government must choose between (1) complying with the Bail Reform Act or (2) continuing to hold the defendant in immigration detention notwithstanding that she had been released on bond.  See United States v. Lopez, 17-cr-683 (1/19/18 electronic order).

This decision is the most recent contribution to a string of “Trujillo” decisions, see United States v. Trujillo-Alvarez, 900 F. Supp. 2d 1167 (D. Or. 2012).  For practitioners’ convenience, this blog will maintain an updated list of all Trujillo decisions in the EDNY and SDNY. If you are aware of any decided cases that are not on this list, please contact our office.

Practitioners should also note this recent New York Times article, which confirms that Customs and Border Patrol (CBP) has only recently started placing people in immigration detention after they have been …

Posted by
Categories: bail, ICE detention

Posted By
Categories: bail, ICE detention

Continue Reading
Wednesday, January 10th, 2018

Supreme Court GVR (and Government Confession of Error) in Speedy Trial Act Case

Sentencing Resource Counsel Ada (“Sissy”) Phleger has the details, including as to the practical relevance of the case:

On Monday, the Supreme Court granted-vacated-and-remanded a case involving the Speedy Trial Act, White v. United States (17-270), in light of the Solicitor General’s confession of error. While the Government’s confession blocked merits review in Mr. White’s particular case, its arguments can be useful to others who encounter the issue (particularly in the Fourth, Sixth, Seventh, and Eighth Circuits).

The Sixth Circuit had rejected Petitioner Jimmie White’s Speedy Trial Act claim which turned on how to treat the time spent in ultimately unsuccessful plea negotiations. Mr. White sought cert, presenting the following question:

Whether, under the Speedy Trial Act, time engaged in a plea negotiation that does not result in a finalized plea agreement is automatically excludable as “other proceedings concerning the defendant” under 18 U.S.C. § 3161(h)(1), as four circuits hold;

Posted by
Categories: speedy trial

Posted By
Categories: speedy trial

Continue Reading

Burdens of Proof & Restitution Under The MVRA

Yesterday the Second Circuit issued a short opinion concerning the burdens of proof for modifying restitution orders under the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. §§ 3663A & 3664. Specifically, the panel held that the district court acted within its discretion in requiring the defendant to prove that a victim recovered money in civil litigation “for the same loss” caused by the defendant. Id. § 3664(j)(2) (requiring that a restitution order be reduced by the amount of such recoveries). The opinion in United States v. Smathers, No. 16-2394 (Kearse, Cabranes, Wesley) (per curiam) (appeal from Hellerstein, J., SDNY), is available here.

Mr. Smathers, a former AOL employee, was ordered to pay $84,000 in restitution to AOL in connection with his conviction for selling the company’s customer list to be used for spam. Through his attorney, Mr. Smathers requested that the district court determine whether this restitution order …


Posted By
Categories: burden of proof, MVRA, restitution

Continue Reading
Tuesday, January 9th, 2018

Federal Defender Fact Sheet Challenging Link Between Judicial Discretion and Racial Sentencing Disparities

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.

Posted by
Categories: Booker, sentencing

Posted By
Categories: Booker, sentencing

Continue Reading