Federal Defenders of New York Second Circuit Blog


Monday, June 14th, 2021

Raising an unpreserved Rehaif claim? You now face an “uphill climb.”

Anyone appealing a criminal conviction is used to uphill battles. Now there is one more. In a near-unanimous decision issued today, the Supreme Court held that the strict plain-error test applies to unpreserved Rehaif claims, explicitly stating that anyone raising this type of claim faces an “uphill climb.” Why? According to Kavanaugh, J., writing for the 8 justice majority: “If a person is a felon, he ordinarily knows he is a felon.”

Just a little refresher: In Rehaif, decided just two years ago, the Supreme Court held that “the Government must prove that a defendant knows of his status as a person barred from possessing a firearm,” for example because of a prior felony conviction. The Rehaif court explained that this element was “crucial” in “separating innocent from wrongful conduct.” Following Rehaif, the Fourth Circuit held in United States v. Gary that pre-Rehaif guilty pleas must be …


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Categories: Rehaif, Uncategorized

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Friday, June 11th, 2021

Circuit Affirms Grant of Habeas Relief Based on Clear Confrontation Clause Violation.

In Garlick v. Lee, No. 20-1796, the Circuit (Wesley, Sullivan, and Menashi) upheld Chief Judge Colleen McMahon’s decision to grant a petition for habeas corpus relief under 28 U.S.C. § 2254.

Garlick was convicted in state court of first-degree manslaughter. At trial, an autopsy report—prepared at the request of law enforcement during an active homicide investigation—was admitted into evidence over Garlick’s objection through a witness who had not participated in the autopsy or the preparation of the autopsy report. On appeal, the First Department affirmed the conviction, concluding that Garlick’s Sixth Amendment right of confrontation was not violated because the autopsy report did not link the commission of the crime to Garlick and therefore was not “testimonial.”

On collateral review, the district court granted Garlick’s § 2254 petition because the First Department’s decision was an “unreasonable application of clearly established federal law.”

The Second Circuit affirmed. Judge Menashi’s opinion …


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Categories: habeas corpus, manslaughter

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Thursday, June 10th, 2021

Supreme Court holds that a crime with a mens rea of recklessness is not a “violent felony” under the Armed Career Criminal Act.

Today’s big legal news is Borden v. United States, 593 U.S. __ (2021), in which the Supreme Court held that a criminal offense with a mens rea of recklessness does not qualify as a “violent felony” under the Armed Career Criminal Act (“ACCA”).

Borden pleaded guilty as a felon-in-possession of a firearm. The prosecution sought an enhanced sentence under the ACCA, which mandates a 15-year minimum sentence for persons found guilty of illegally possessing a firearm who have three or more prior convictions for a “violent felony.” An offense qualifies as a violent felony under the ACCA’s elements clause if it necessarily involves “the use, attempted use, or threatened use of physical force against the person of another,” 18 U.S.C. 924(e)(2)(B)(i). One of Borden’s three predicate convictions was for reckless aggravated assault in violation of Tennessee law. He argued that this offense was not a violent felony under the …

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Categories: ACCA, mens rea, violent felony

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Categories: ACCA, mens rea, violent felony

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Wednesday, June 9th, 2021

Scheme to Bribe Basketball Coaches Fouls Out.

In United States v. Dawkins, No. 19-3623(L) (2d Cir. June 4, 2021) (Raggi, Sullivan, and Nardini), the Circuit affirmed the defendants’ convictions arising from a scheme to bribe college basketball coaches, in violation of 18 U.S.C. § 666(a)(2). As relevant, Section 666 makes it a crime to bribe “an agent of an organization … in connection with any business, transaction, or series of transactions of such organization … involving anything of value of $5,000 or more,” provided that “the organization … receives, in any one[-]year period, [federal] benefits in excess of $10,000.”

The defendants argued on appeal, among other things, that this statute requires (1) a “nexus” between the “agent” to be bribed and the federal funds received by his or her organization; and (2) evidence that the “business” of a federally funded organization, to which the bribery scheme is connected, be commercial in nature.

The Circuit rejected both …

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Tuesday, June 8th, 2021

Government Did Not Act Unconstitutionally or in Bad Faith by Refusing to Make “Substantial Assistance” Motion Under § 3553(e).

In United States v. Trimm, No. 20-2264 (2d Cir. June 2, 2021) (per curiam) (Livingston, Jacobs, and Menashi), the Second Circuit held that the district court erred in concluding that the government’s refusal to make a “substantial assistance” motion under 18 U.S.C. § 3553(e) was unconstitutional and motivated by bad faith. Accordingly, the Court vacated the defendant’s sentence and, to preserve the appearance of justice, remanded for resentencing before a different judge.

Pursuant to a plea agreement, Trimm pleaded guilty to conspiracy to use a minor to produce child pornography. Trimm also agreed to assist the government in securing the conviction of her co-conspirator. The agreement vested in the government sole discretion to determine whether and how to credit Trimm’s cooperation, including whether to file a “substantial assistance” motion under U.S.S.G. § 5K1.1, § 3553(e), or both.

After evaluating Trimm’s assistance, the government decided to make a motion under …

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Categories: 3553(a)

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Thursday, June 3rd, 2021

Reminder: Hobbs Act Robbery is *NOT* a Career Offender or ACCA Predicate

Hobbs Act robbery is not a qualifying predicate under either the Career Offender Guideline or the Armed Career Criminal Act (“ACCA”).  But it does count under § 924(c).  This is because it can be committed “by means of actual or threatened force, or violence, or fear of injury, immediate or future, to [someone’s] person or property.”  18 U.S.C. § 1951(b)(1).

The Guideline and ACCA

“Because Hobbs Act robbery can be committed by using force against persons or property, it reaches more broadly than the Career Offender Guideline’s elements clause, [U.S.S.G. § 4B1.2(a)(1),] which is limited to offenses using force against persons.”  Nunez v. United States, 954 F.3d 465, 477 n.5 (2d Cir. 2020) (Raggi, J., concurring).  For the same reason, the offense is beyond the reach of ACCA’s elements clause, which is also limited to “force against the person of another.”  18 U.S.C. § 924(e)(2)(B)(i).

Also because Hobbs …

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Categories: career offender, Hobbs Act

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Categories: career offender, Hobbs Act

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Thursday, May 27th, 2021

Supreme Court overrules the “watershed rule of criminal procedure” portion of Teague v. Lane.

The issue in Edwards v. Vannoy, decided May 17, 2021, was whether the Supreme Court’s decision in Ramos v. Louisiana, 140 S. Ct. 1390 (2020), will apply retroactively to cases on federal collateral review.  Ramos is the case which decided that unanimous jury verdicts are required in state felony cases, thus outlawing the non-unanimous jury practices that existed in only two states – Louisiana and Oregon.  In a 6-to-3 vote, the Supreme Court decided against retroactive application, which means, as Justice Kagan tells us in dissent, that Mr. Edwards, unlike Mr. Ramos, “will serve the rest of is life in prison based on a 10-to-2 jury verdict.”

As many of us recall, when the Supreme Court promulgates a new rule of criminal procedure, it applies not just to future cases but also to cases that are already on direct appeal.  See Griffith v. Kentucky, 479 U.S. 314 …

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Supreme Court holds that there is no “community caretaking” exception to the Fourth Amendment’s warrant requirement.

In Caniglia v. Strom, decided May 17, 2021, the Supreme Court ruled that there is no such thing as a “community caretaking” exception to the warrant requirement of the Fourth Amendment.

This case began when Mr. Caniglia had an argument with his wife at their Rhode Island home.  He then retrieved a pistol from the bedroom and asked his wife to “shoot [him] now and get it over with.”  Instead, she left the house and spent the night at a hotel.  In the morning, when Mr. Caniglia did not answer his phone, she called the police and asked them to check on him.  The police found him on his porch.  Mr. Caniglia confirmed his wife’s account of the events of the previous evening, but denied that he was suicidal.  The police called an ambulance and eventually convinced him to go to the hospital for a psychiatric evaluation.  Later, his …

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Categories: Fourth Amendment

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Wednesday, May 26th, 2021

Twenty-year term of supervised release neither procedurally nor substantively unreasonable

In United States v. Joseph Williams, No. 20-1021 (2d Cir. May 26, 2021), a Panel of the Court (Pooler, Sullivan, and Park) ruled in a per curiam opinion that Williams’s 20-year term of supervised release, to follow a 160-month term of imprisonment, was neither procedurally nor substantively unreasonable on plain-error review. Williams argued principally that the term of supervised release was procedurally faulty because the district court violated 18 U.S.C. § 3553(c), requiring a sentencing court to “state in open court the reasons for its imposition of the particular sentence . . . .” Specifically, while the court the explained the basis for the chosen term of imprisonment (and discussed the § 3553(a) factors in so doing), it “did not separately explain the factors [in] imposing the term of supervised release.” Op. 4.

The Court found “no procedural error in the district court’s failure to separately explain the basis …


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Categories: plain error, supervised release

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Tuesday, May 25th, 2021

Circuit strikes a special condition of supervised release requiring the defendant to participate in a “restorative justice program” as vague and as delegating judicial authority to the Probation Office

In United States v. Patrick W. Carlineo, 2d Cir. No. 20-1020 (May 25, 2021), a Panel of the Court (Parker, Lohier, and Menashi) invalidated a special condition of supervised release requiring the defendant to “participate in a program known as the Partners in Restorative Initiatives” as too vague and as delegating too much authority to the Probation Office. Judge Parker’s opinion does not invalidate all such conditions. Rather, the takeaway is that if a district judge wishes to impose a restorative-justice-related condition of supervision, the judge must specify the details of the program — preferably one vetted by the Probation Office — and indicate specifically what the defendant must do to satisfy the condition and avoid violation.

Carlineo pleaded guilty to threatening Congresswoman Ihlan Omar and to possessing a gun after a felony conviction. Before sentencing, the district court received an unsolicited letter “from Will Bontrager, who identified himself …

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The Supreme Court throws a wrench into § 1326(d) motions in the Second Circuit

In United States v. Palomar-Santiago, No. 20-437 (May 24, 2021), Justice Sotomayor ruled for a unanimous Court that as a matter of statutory interpretation (1) each of 8 U.S.C. § 1326(d)’s three requirements must be satisfied; and that (2) a showing by the defendant that the deportation proceeding was “fundamentally unfair” under § 1326(d)(3) — because the immigration judge (IJ) mistakenly told him that he was removable as an aggravated felon due to his DUI conviction (this became error six years later in Leocal v. Ashcroft, 543 U.S. 1 (2004), holding that a DUI is not a § 16(b) “crime of violence” and thus not an “aggravated felony”) – does not suffice to dismiss a reentry indictment. The decision overrules Ninth Circuit law holding that “defendants are ‘excused from proving the first two requirements’ of § 1326(d) [– noncitizen defendants must show that they exhausted administrative remedies and …


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Categories: aggravated felony, crime of violence, deportation

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