Federal Defenders of New York Second Circuit Blog


Thursday, April 2nd, 2020

A Crime that Can be Committed by Inaction is Not a “Crime of Violence”

The Second Circuit held this week that an offense is not a “crime of violence [if] it can be committed by complete inaction and therefore without the use of force.”  United States v. Scott, ___ F.3d ___, 2020 WL 1522825, at *1 (2d Cir. Mar. 31, 2020).

Mr. Scott had originally been subjected to the Armed Career Criminal Act’s 15-year mandatory minimum, along with the Career Offender Guideline, based on two prior convictions for New York manslaughter in the first degree.  Someone is guilty of that offense when, “[w]ith intent to cause serious physical injury to another person, he causes the death of such person or of a third person.”  N.Y. Penal Law § 125.20(1).  New York’s highest court has said this statute reaches a parent’s “failure to obtain medical care for a child.”  People v. Steinberg, 79 N.Y.2d 673, 680 (1992).  See also id(“The Penal …


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Categories: ACCA, career offender, crime of violence

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Saturday, March 28th, 2020

A Note on § 922(g) Clients

As the defense community continues to focus on clients at elevated risk during the COVID-19 pandemic, a recent ruling from the Fourth Circuit offers new support for vacating the convictions of clients who pleaded guilty to gun possession in violation of 18 U.S.C. § 922(g).  An element of that offense is that, at the time the defendant possessed a gun, he “knew he belonged to the relevant category of persons barred from possessing a firearm.”  Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019).  For most clients, that means knowing of a prior conviction for “a crime punishable by imprisonment for a term exceeding one year.”  § 922(g)(1).

In United States v. Gary, ___ F.3d ___, 2020 WL 1443528 (4th Cir. Mar. 25, 2020), the court held the failure to advise a defendant of the Rehaif element at his guilty plea is “a structural error that requires …

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Categories: 922(g), Rehaif

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Categories: 922(g), Rehaif

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Monday, March 9th, 2020

The evidence sufficiently proved the defendant “had a reasonable opportunity to observe” the underage victim, under 18 U.S.C. § 1591(b)(1) (sex trafficking of minors). And it wasn’t procedural error when the court used the defendant’s “false [trial] testimony” as an aggravating factor under § 3553(a) — in imposing a substantially below-Guidelines sentence — without finding the testimony qualified as perjury under Guidelines § 3C1.1. United States v. Almonte, No. 18-3769, __F.3d__, 2020 WL 1056786 (March 5, 2020).

1. Sufficiency of evidence of sex trafficking involving underage victim

The defendant was convicted, after trial,  of several offenses, including  sex trafficking of a minor who was less than 14 years old, in violation of 18 U.S.C. § 1591(a) and (b)(1).  She moved unsuccessfully for a judgment of acquittal (Fed.R.Crim.P. 29), arguing the evidence didn’t  establish she “had a reasonable opportunity to observe” the underage victim as required by 18 U.S.C. § 1591(c).  The Circuit affirms the district court’s denial of the Rule 29 motion. Almonte, 2020 WL 1056786 at *1.

Section 1591(c) states that in a prosecution for sex trafficking under § 1591(a)(1), “in which the defendant had a reasonable opportunity to observe the [underage victim] . . ., the Government need not prove that the defendant knew, or recklessly disregarded the fact, that the person had not attained the age of 18 years.” 18 U.S.C. § 1591(c). …


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Categories: 3553(a), obstruction of justice, procedural reasonableness, sex offenses, substantive reasonableness

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Wednesday, February 19th, 2020

Committing or threatening violence is a “crime of violence.”

For one brief, beautiful moment, it seemed like nothing could ever be a crime of violence. But the pendulum is swinging back and now everything is becoming a crime of violence once again.

In United States v. Nikolla, 17-2206-cr (2d Cir. Feb. 19, 2020), the Second Circuit held that threatening violence in furtherance of an extortion plan, in violation of 18 U.S.C. § 1951(a), is categorically a “crime of violence” under the force (or elements) clause of 18 U.S.C. § 924(c).

In Nikolla, the defendant pled guilty to several charges, including a § 924(c) offense, pursuant to a written plea agreement. On appeal, he nonetheless challenged his § 924(c) conviction. In upholding this conviction, the Circuit found § 1951(a) divisible and noted that the defendant pled guilty to the provision which applies to a defendant who “commits or threatens physical violence to any person or property in furtherance” …


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Categories: 924(c), crime of violence

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Notable compassionate release decision

The First Step Act expanded so-called compassionate release, which permits a court to reduce a previously-imposed sentence if it finds that “extraordinary and compelling reasons warrant such a reduction.” 18 U.S.C. § 3582(c)(1)(A). The Act also for the first time enabled defendants to make an application directly to the court for such relief. We are still waiting to see the full impact of these legal changes. One open question is what constitutes “extraordinary and compelling reasons.” Both the Sentencing Commission and the Bureau of Prisons have promulgated definitions. But do these definitions limit the authority of courts to grant relief? Recently, a federal court in Utah found that they did not.

In United States v. Kepa Maumau, No. 08 Cr. 758 (TC) (D. Utah Feb. 18, 2020), the district court ruled that it was not bound by the Sentencing Commission’s or Bureau of Prisons’ definitions of “extraordinary and compelling …

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Tuesday, February 11th, 2020

Second Circuit Holds N.Y. Attempted Second Degree Assault With a Deadly Weapon (N.Y.P.L. §120.05. (2) ) a “Crime of Violence” Under Force Clause and §846 Narcotics Conspiracy a “Controlled Substance Offense.”

In United States v. Tabb, __ F.3d __, 2020 WL 573379 (2d Cir. Feb. 6, 2020), the Court of Appeals held that New York’s attempted assault in the second degree with a deadly weapon or dangerous instrument qualifies as a crime of violence under the force clause. The Court had previously held, in Singh v. Barr, 939 F.3d 457 (2d Cir. 2019), that the completed crime qualifies under the force. It relied here on Singh and on its pre-Johnson decision in United States v. Walker, 442 F.3d 787 (2d Cir. 2006), which held that attempted assault with a deadly weapon was a violent felony under the ACCA’s force clause. The Court followed Singh in rejecting the argument, based on Chrzanoski v. Ashcroft, 327 F.3d 188 (2d Cir. 2003), that the substantive offense could be committed by indirect force or omission. Chrzanoski held that Connecticut third


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Categories: assault, attempt, conspiracy, crime of violence

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Second Circuit Affirms Denial of Post Trial Competency Hearing for Pro Se Defendant with “Sovereign Citizen” Tax Defense.

In United States v. DiMartino, __ F.3d __, 2020 WL 550475 (Feb. 4, 2020) (Jacobs, Sack, Hall), the Circuit affirmed the denial of a post-trial motion for a competency hearing based on the defendant’s persistent adherence to the “Sovereign Citizen” theory that the IRS and Justice Department are private corporations, the tax laws are invalid, and the court had no jurisdiction over him. The defendant had represented himself at trial and his defense was that this theory was true and that he believed it was true. After his conviction, he retained counsel for sentencing. Counsel filed the motion with a psychologist’s report concluding that the defendant had a delusional disorder, based on his continuing insistence on the Sovereign Citizen theory. The Court of Appeals affirmed the district court’s conclusion that, based on DiMartino’s conduct of the trial, he was competent, and that the psychologist’s report was unreliable.

The Second …


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Categories: comptency, Sovereign Citizen

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Second Circuit Rules That No Statement of Reasons Is Required For a VOSR Sentence.

In United States v. Smith, __ F.3d __ , 2020 WL 521612 (Feb. 3, 2020) (Wesley, Chin, Sullivan), the Court of Appeals held that no Statement of Reasons (“SOR”) need be filed for a sentence imposed in a VOSR, even if it is above the Guidelines range, because the Sentencing Commission has not provided an SOR form for a VOSR. The Court overruled its prior precedent holding that a Statement of Reasons was required for a VOSR sentence, e.g. United States v. Aldeen, 792 F.3d 247, 251-52 (2d Cir. 2015); United States v. Sindima, 488 F.3d 81, 85 (2d Cir. 2007), after a “mini-en banc” procedure of circulating the opinion to all active members of the Court. The Second Circuit reasoned that the prior rule was based on an earlier version of the 18 U.S.C. §3553(c)(2) which was amended in 2010. Unlike the former statute, which required


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Categories: sentencing, statement of reasons, supervised release

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Thursday, January 23rd, 2020

Another Court Rules Attempted Hobbs Act Robbery is NOT a “Crime of Violence”

As blogged about here, Judge Johnson of the E.D.N.Y. has ruled that attempted Hobbs Act robbery is not a “crime of violence” under 18 U.S.C. § 924(c).

He’s just been joined by Judge Telesca of the W.D.N.Y.  “[A]ttempted Hobbs Act robbery does not categorically entail the use, threatened use, or attempted use of force.”  Lofton v. United States, 2020 WL 362348, at *9 (W.D.N.Y. Jan. 22, 2020).  That is because the “requisite categorical approach,” by “which a court must examine ‘the minimum criminal conduct necessary for conviction,’” shows that the crime can be committed “‘without any use, attempted use, or threatened use of violence.’”  Id. at *7 (citations omitted).

As briefed in a pending case, United States v. Pica, E.D.N.Y. 08-559, the minimum conduct for attempted Hobbs Act robbery is surveilling a target with the intent to rob him but not actually use force: in short, to bluff.  …


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Categories: 924(c), crime of violence, Hobbs Act, robbery

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Rehaif Claims — Keep ‘Em Comin’!

To convict someone of unlawful gun possession under 18 U.S.C. § 922(g), “the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.”  Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019).  For the most commonly charged § 922(g) violation, that means proving the defendant was subjectively aware of the fact — at the moment he possessed the gun — that he had “been convicted in any court of a crime punishable by imprisonment for a term exceeding one year.”  § 922(g)(1).

The mere fact of having a felony conviction is not enough.  There must be proof the defendant was subjectively aware of the conviction at the moment he possessed the gun.  Judge Sullivan explained this in a ruling blogged about here.  See also Rehaif, 139 S. …

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Friday, January 17th, 2020

Circuit Holds That New York Offense of Possession of a Sexual Performance By a Child (N.Y. Penal Law §263.16) Categorically Matches 18 U.S.C §2252(a)(4)(B) and Is an Aggravated Felony Under the INA.

In Quito v. Barr, __ F.3d __ 2020 WL 218590 (2d Cir. Jan. 15, 2020) (Wesley, Livingston, Bianco),  the Second Circuit held that attempted possession of a sexual performance by a child under N.Y. Penal Law §263.16 is an aggravated felony under the INA because it categorically fits the definition of the federal offense of possessing child pornography under 18 U.S.C. § 2252(a)(4)(B), an enumerated aggravated felony. The Court rejected petitioner’s arguments that the New York statute sweeps more broadly because it does not require knowledge of the minor’s specific age and does not include the affirmative defense to §2252(a)(4)(B) for someone who possessed fewer than three images and promptly destroyed them or turned them over.

The Court ruled, as a threshold matter, that it was not bound by its previous holding in Weiland v. Lynch, 835 F.3d 207 (2d Cir. 2016),  that  a “nearly identical” New York …


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Categories: aggravated felony, categorical approach, child pornography

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