Federal Defenders of New York Second Circuit Blog


Thursday, May 23rd, 2024

What categorical approach?

Today, in Brown v. United States, the Supreme Court held that state drug convictions count as ACCA predicates if they involved a drug that was on the federal drug schedules at the time of the state conviction. In Brown, legislatures had eliminated two substances from the relevant drug schedules – hemp and ioflupane – between the time of the petitioners’ original cases and their ACCA cases. Thus, the state and federal drug schedules did not match at the time of their ACCA cases. The petitioners argued that, under the categorical approach, their prior state cases were not ACCA predicates.

The Supreme Court rejected this argument, finding that the drug schedules at the time of the ACCA conviction are essentially irrelevant. In reaching this decision, Justice Alito highlighted the facts of the petitioners’ prior drug offenses at length, emphasizing that the petitioners had possessed marijuana and cocaine, “not hemp …

Posted by
Categories: Uncategorized

Posted By
Categories: Uncategorized

Continue Reading
Wednesday, May 8th, 2024

A district court may not base its sentence on a disagreement with the categorical approach.

In United States v. Marcus Odom, No. 23-6105 (2d Cir. May 8, 2024) (summary order), the Second Circuit upheld the defendant’s challenged prison sentence, while also opining that a sentencing court may not increase a prison sentence based on its disagreement with the so-called “categorical” approach.

Odom’s case was before the district court for resentencing as a result of United States v. Taylor, 596 U.S. 845 (2022). Taylor held that attempted Hobbs Act robbery does not qualify as a “crime of violence” for purposes of 18 U.S.C. § 924(c), applying the well-established “categorical” approach. Odom had originally pled guilty to attempted Hobbs Act robbery and a violation of § 924(c) but, following Taylor, his § 924(c) conviction was vacated. He was resentenced on the attempted Hobbs Act robbery alone.

Some judges have complained about the categorical approach and Odom’s district judge is apparently among them. At the …


Posted By
Categories: categorical approach, sentencing

Continue Reading
Wednesday, May 1st, 2024

IAC claim rejected on direct appeal because lack of prejudice to defendant is “beyond doubt” and district court sufficiently explained its sentence given “the lesser specificity required for a [revocation] sentence”

Not sure why United States v. Antonio Ortiz, 2d Cir. No. 22-1775-cr (April 30, 2024), is a published opinion rather than a summary order. Judge Menashi’s opinion for the panel (Calabresi, Menashi, Perez) rejects Ortiz’s challenge to his five-year sentence, imposed upon revocation of supervised release after the district court found that he raped his teenage daughter on several occasions.

The issues are fact-specific. Two are worth noting.

First, although the Circuit generally declines to address an IAC claim raised for the first time on direct appeal, it will decide the issue when “the record is developed and the resolution of the claim is beyond doubt.” Op. 7 (citing cases). Here, the record shows that any alleged ineffectiveness by Ortiz’s counsel (in failing to offer certain evidence) would have made no difference to the district judge (the fact-finder),

Second, although a sentencing court is required to state in open …


Posted By
Categories: ineffective assistance of counsel, supervised release

Continue Reading
Tuesday, April 30th, 2024

Circuit holds that federal supervised release only begins when the defendant is released from subsequent state custody, not when he is released from federal custody into state custody.

In United States v. Freeman, No. 23-6394 (2d Cir. April 23, 2024), the defendant was ordered to begin his supervised release almost ten years after his release from federal prison, when he was finally released from state custody on charges that were dismissed. Freeman argued that his supervised release term began upon his release from federal prison and was not tolled by his state detention. 18 U.S.C. 3624(e),  provides that “a prisoner whose sentence includes a term of supervised release after imprisonment shall be released by the Bureau of Prisons to the supervision of a probation officer” and that “supervised release commences on the day the person is released from imprisonment.” It further provides that the term of supervised release is tolled for any period in which the person is “imprisoned in connection with a conviction for a Federal, State, or local crime” unless the sentence is less than …


Posted By
Categories: commencement, supervised release, tolling

Continue Reading
Monday, April 29th, 2024

Defendant’s complaint concerning scope of prior appellate mandate is barred by appellate waiver in new plea agreement, and the district court did not err in considering his sectarian motivation at sentencing

In United States v. Maalik Alim Jones, 2d Cir. No. 22-2958-cr (April 29, 2024), the panel (Walker, Park, Perez) in a per curiam opinion rejects Jones’s challenge to his 25-year sentence, imposed on remand after a prior appeal and following Jones’s guilty plea under a new plea agreement in which he waived the right to appeal “any sentence” of 300 months or lower. Jones is an American citizen who moved to Somalia and joined al-Shabaab, “an Islamic terrorist organization.” Op. 3. He pleaded guilty to various offenses based on the group’s murderous attacks in Kenya and Somalia.

Most of the issues are fact-specific, but two are worth noting.

First, despite the appellate waiver, Jones contended to the Circuit that the district court (and the Government) exceeded the scope of its prior mandate on remand (for various reasons). And he claimed that his “challenge to this Court’s mandate overrides the …

Posted by
Categories: jurisdiction, terrorism

Posted By
Categories: jurisdiction, terrorism

Continue Reading
Monday, April 22nd, 2024

Supreme Court: District Court’s Failure To Enter Preliminary Order Of Forfeiture Prior To Sentencing Does Not Bar Court From Ordering Forfeiture At Sentencing.

In United States v. McIntosh, No. 22-7386 (U.S. Apr. 17, 2024), a unanimous Supreme Court held that a district court’s failure to enter a preliminary order of forfeiture prior to sentencing, as required by Fed. R. Crim. P. 32.2(b)(2)(B), “does not bar a judge from ordering forfeiture at sentencing subject to harmless-error principles on appellate review.”

McIntosh participated in a series of Hobbs Act robberies. During one of them, he took $70,000 in cash, and used part of that sum to buy a BMW. He was indicted for several counts of Hobbs Act robbery and corresponding 18 U.S.C. § 924(c) offenses. The indictment included a forfeiture allegation identifying robbery proceeds and the government also provided a bill of particulars identifying the BMW as forfeitable. McIntosh was convicted at trial. Prior to sentencing, the government did not seek, and the district court did not enter, the preliminary order of forfeiture …

Posted by
Categories: fofeiture, Rule 32

Posted By
Categories: fofeiture, Rule 32

Continue Reading
Friday, April 12th, 2024

Yet again, the Second Circuit vacates an unexplained condition of supervised release.

Yes, the Second Circuit means it! If the district court doesn’t explain why a special condition of supervised release is required in a particular case, the Circuit will vacate the condition.

Today, yet again, the Second Circuit vacated a condition of supervised release because the district court did not explain the reasons for imposing the condition or make an individualized assessment it was necessary for Mr. Syed. In Mr. Syed’s case the vacated condition was broad electronic and GPS monitoring, without any reasonable suspicion required. In that way Syed is a lot like United States v. Salazar, decided last year.

But, in a broader sense, Syed is just the latest in a string of Second Circuit decisions vacating conditions of supervised release. See also United States v. Alex Oliveras, No. 21-2954 (2d Cir. March 15, 2024), United States v. William Jimenez, No. 21-2954 (2d Cir. March 18, 2024), …

Posted by
Categories: Uncategorized

Posted By
Categories: Uncategorized

Continue Reading
Monday, March 18th, 2024

Special conditions of supervised release must be based on an individualized assessment of the defendant and adequately explained.

In two recent decisions, the Second Circuit reiterated the requirements for imposing special conditions of supervised release: a sentencing court must undertake an “individualized assessment” of the defendant and “state on the record the reason for imposing” any special condition. The failure to do so is error.

In United States v. Alex Oliveras, No. 21-2954, — F.4th — (2d Cir. March 15, 2024), the Circuit vacated a special condition allowing the federal probation officer to conduct suspicionless searches of the defendant and his property.

The defendant argued, first, that this special condition violated the Fourth Amendment, and, second, that it was not adequately justified on the record.

The Circuit recognized that individuals on supervised release have a diminished expectation of privacy, and that probation officers have a legitimate need to fulfill their supervisory duties by conducting searches. At the same time, supervisees retain Fourth Amendment rights and conditions infringing …


Posted By
Categories: Fourth Amendment, special needs, supervised release

Continue Reading

Supreme Court narrows the “expanded” safety valve.

Under 18 U.S.C. § 3553(f), the so-called “safety valve” provision, district courts have a limited power to impose a sentence below the statutory mandatory minimum in certain drug cases. The defendant’s offense must not involve particular aggravating factors (violence, guns) and the defendant must have a limited criminal history. But how limited?

The 2018 First Step Act expanded this provision to apply to any defendant who “does not have–

(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;
(B) a prior 3-point offense, as determined under the sentencing guidelines; and
(C) a prior 2-point violent offense, as determined under the sentencing guidelines ….”

But is that “and” an “and” or an “or”? In other words, is any one of these criteria (4 points or a 3-point offense or a 2-point violent offense) disqualifying or is a …

Posted by
Categories: safety valve

Posted By
Categories: safety valve

Continue Reading
Friday, March 8th, 2024

Mistaken Expectation of a Lower Sentence Does Not Render Guilty Plea Involuntary or Unintelligent.

In United States v. Delvalle, No. 22-1539-cr (2d Cir. Mar. 5, 2024) (per curiam), the Court reiterated its longstanding rule that a guilty plea is not rendered involuntary or unintelligent simply because the defendant expected to receive a lower sentence than he ultimately received.

Delvalle pleaded guilty to a drug conspiracy. The parties estimated that his Guidelines range was 360-480 months, with a statutory minimum term of 60 months. During the plea colloquy, the defendant acknowledged that he had not been “promised” a below-Guidelines sentence, but nevertheless thought it was a “big maybe.” He was disappointed at sentencing when the judge imposed 420 months of imprisonment.

On appeal, he argued that his plea was involuntary because he believed that he would receive a below-Guidelines sentence, and that this belief influenced his decision to plead guilty. The Circuit rejected this argument, “reiterat[ing] the well settled rule that a defendant’s guilty plea …

Posted by
Categories: Uncategorized

Posted By
Categories: Uncategorized

Continue Reading
Thursday, February 29th, 2024

A post-sentencing examination of previously seized electronic data does not violate the Fourth Amendment. And the subsequent prosecution of the defendant for producing child pornography – based on evidence discovered in that examination – is not barred by the prior plea agreement concerning his conviction for possessing child pornography.

In United States v. Cory Johnson, 2d Cir. No. 22-1086-cr (February 27, 2024), the panel (Livingston, Carney, Bianco) rejects Johnson’s claims and affirms his conviction and 20-year sentence for producing child pornography (CP) in violation of 18 U.S.C. § 2251(a). The opinion, by Chief Judge Livingston, concludes that the instant prosecution for CP production – which follows Johnson’s 2019 conviction for CP possession, after a guilty plea pursuant to a plea agreement– is not barred by the prior agreement. The opinion also rules that the evidence leading to the production charge, discovered during an examination of electronic data seized in the possession case that occurred after Johnson’s sentencing, was not obtained in violation of the Fourth Amendment.

***

Here’s the gist.

After “Johnson was first identified by federal authorities as trading child sexual abuse material (CSAM) within an Internet chat group in 2018, the execution of a search warrant …


Posted By
Categories: child pornography, Fourth Amendment

Continue Reading