Federal Defenders of New York Second Circuit Blog


Monday, July 8th, 2019

The Supreme Court Vacates Barrett

The Second Circuit’s decision in United States v. Barrett, 903 F.3d 166 ( 2d Cir. 2018), was vacated by the Supreme Court in a GVR order on June 28, 2019, in light of United States v. Davis, 588 U.S. __, 2019 WL 2649797. Davis held, contrary to Barrett, that the residual clause of 924(c)(3)(B) is void for vagueness. See Blog Post dated June 26, 2019.

In light of the Supreme Court’s order in Barrett, the government has acknowledged that Hobbs Act conspiracy no longer qualifies as a crime of violence under §924(c) because it does not qualify under the “force” or “elements” clause. So §924(c) convictions based on a Hobbs Act conspiracy as the predicate “crime of violence” are invalid. Unfortunately, the Second Circuit held that substantive Hobbs Act robbery  qualifies under the force clause, in United States v. Hill, 890 F.3d 51(2018)


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

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Thursday, June 27th, 2019

What is a “high-crime area” and what does that mean?

What is a “high-crime area” and what does that mean?

It turns out, everything and nothing.  And race has a lot to do with it.

Professors Ben Grunwald, of Duke, and Jeffrey Fagan, of Columbia, examined two million NYPD stops from 2007-2012 and find that NYPD officers  “call almost every block in the city high crime,” that “their assessments of whether an area is high crime are nearly uncorrelated with actual crime rates,”  and “the racial composition of the area and the identity of the officer are stronger predictors of whether an officer calls an area high crime than the crime rate itself.”

Their article, The End of Intuition-Based High-Crime Areas, which you can access here, presents the first empirical analysis of the Supreme Court’s decision in Illinois v. Wardlow and its holding that a suspect’s presence in a “high-crime area” is relevant to the question of whether an …


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Categories: bias, reasonable suspicion

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Supreme Court Debrief: Flowers v. Mississippi

In Flowers v. Mississippi, the Supreme Court ruled 7-2 that death-row inmate Curtis Flowers’ criminal trial was affected by racial discrimination.  You can read more about the case here.

Georgetown Professors Abbe Smith and Vida Johnson of Georgetown Law’s Criminal Defense & Prisoner Advocacy Clinic, two career criminal defense attorneys, have recorded a video exploring the Flowers case, its implications and how criminal defenders and prosecutors should approach jury selection going forward.

You can watch the video here.…


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Categories: Batson, bias, jury selection, Uncategorized

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Wednesday, June 26th, 2019

The Supreme Court held in United States v. Davis that the so-called “residual clause” of 18 U.S.C. 924(c)(3)(B) is void for vagueness

The Supreme Court held in United States v. Davis that the so-called “residual clause” of 18 U.S.C. 924(c)(3)(B) is void for vagueness. This means that the only way a crime can qualify as a “crime of violence” for purposes of Section 924(c) is under the “elements” (or “force”) clause of 18 U.S.C. 924(c)(A). That clause defines a “crime of violence” to mean “an offense that is a felony” and “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”

So what happens now? Here’s a quick overview:

  1. Davis means that the Second Circuit’s decision in United States v. Barrett, 903 F.3d 166 (2d Cir. 2018), which upheld the constitutionality of the residual clause, is no longer good law. And more specifically, the Supreme Court is likely to grant the pending petition for certiorari in Barrett, vacate that
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Categories: 924(c), Hobbs Act, RICO

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Categories: 924(c), Hobbs Act, RICO

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Tuesday, June 25th, 2019

Circuit Reverses Grant of Habeas Relief for Convicted Murderer

In Hyman v. Brown, __ F.3d __ (2d Cir. June 24, 2019), the Court reversed a judgment granting habeas corpus relief from a state murder conviction under 28 U.S.C. § 2254. Judge Raggi wrote the majority opinion, in which Judge Droney joined. Judge Jacobs concurred in a separate opinion.

The Court held that the petitioner had failed to make the “gateway showing of actual innocence” necessary to permit review of his procedurally barred claim of ineffective assistance of counsel. The Court’s reasoning is lengthy and merits the attention of anyone pursuing an “actual innocence” claim. And the news for other petitioners may not be all bad: the Court rejected the State’s argument, for example, that there are “categorical limits” on the types of evidence that can be offered to demonstrate actual innocence. Nevertheless, Hyman is a deeply troubling case: both the majority opinion and the concurrence acknowledge …

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Categories: Uncategorized

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SDNY: Judge Castel Rules That 21 U.S.C. 846 Is Not A “Controlled Substance Offense” Under The Guidelines

Monday, in United States v. Sprull, 18 Cr. 665, Judge Castel ruled that a prior conviction under 21 U.S.C. 846 is not a controlled substance offense under U.S.S.G. 4B1.2(b). Judge Castel agreed with Judge Oetken’s analysis in United States v. Wilson, 18 Cr. 12, and ruled that under the categorical approach, 846 has no overt act requirement, whereas the generic offense of “conspiring” under Application Note 1 to 4B1.2(b) does. As a result, 846 is a categorical mismatch for the Guidelines predicate. We have requested the transcript and will circulate it. We also have briefing on this issue for anyone who’s interested.

The question is currently pending before the Second Circuit in United States v. Tabb, No. 18-338 (briefing complete; oral argument not scheduled yet).…

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Categories: career offender

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Categories: career offender

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Monday, June 24th, 2019

In a 7-2 decision, the Supreme Court holds that in prosecutions under 18 U.S.C. § 922(g) and § 924(a)(2), “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, Sup. Ct. No. 17-9560, __ S.Ct.__, 2019 WL 2552487 (June 21, 2019).

The Supreme Court holds that, to convict a defendant of violating § 922(g) and § 924(a)(2),  the government must show not only that the defendant knew he possessed a firearm, but “also that he knew he had the relevant status when he possessed it.” Opinion (“Op.”)  at 1. The Court states: “We conclude that in a prosecution under 18 U.S.C. § 922(g) and § 924(a)(2), 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.” See Opinion (“Op.”) at 11 (emphases added).

This holding was reached in a 7-2 decision in Rehaif v. United States, Sup. Ct. No. 17-9560, 2019, __S.Ct.__, WL 2552487 (June 21, 2019), authored by Justice Breyer. Justice Alito filed a dissenting opinion joined by Justice Thomas.

Petitioner Ali Rehaif came to the United States “on …

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Categories: 922(g), mens rea

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Categories: 922(g), mens rea

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The Supreme Court reverses death sentence for State inmate because of violations of Batson v. Kentucky (proscribing racially based exercises of peremptory challenges in jury selection): Flowers v. Mississippi, No. 17-9572, __S.Ct. __, 2019 WL 2552489 (June 21, 2019).

In Flowers v. Mississippi, No. 17-9572, __U.S.__ , 2019 WL 2552489  (June 21, 2019), the Court reversed a death sentence because of a violation of Batson v. Kentucky, 476 U.S. 79 (1986), which prohibits the racially discriminatory use of peremptory challenges.

Curtis Flowers was tried in six separate trials, by the “same lead prosecutor” for an offense that occurred in 1996. The first trial was reversed for prosecutorial misconduct; the second and third trials involved judicial findings of Batson violations;  and after the fourth and fifth trials resulted in hung juries, in the sixth trial, the prosecutor struck five of the six black prospective jurors, and Flowers was convicted. Op. at 1-2.  In a 7-2 decision, authored by Justice Kavanagh, the Court reversed the decision of the Mississippi Supreme Court affirming the conviction.

The Court cited four critical facts that taken together required reversal. “First, in …


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Categories: Batson, government misconduct, jury selection

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Friday, June 21st, 2019

A SCOTUS plurality holds that Congress authorizing the U.S. Attorney General  “to specify the applicability” of  SORNA’s registration requirements to people convicted before SORNA was enacted (in 2006), is not an unconstitutional delegation of legislative authority under Article I, § 1 of the Constitution.

Yesterday, in Gundy v. United States, Sup. Ct. No. 17-6086, 2019 WL 2527473 (June 20, 2019), a case out of the Second Circuit, a plurality of the Supreme Court held that 34 U.S.C. § 20913(d) — which authorizes the U.S. Attorney General “to specify the applicability” of the registration requirements of the Sex Offender Registration and Notification Act (“SORNA”) to people convicted before the statute’s enactment (in 2006) — is not an unconstitutional delegation of legislative authority.

The lead opinion was written by Justice Kagan, joined by Justices Breyer, Ginsburg, and Sotomayor. See Opinion (“Op.”) at 1-18. Justice Alito filed a short, one-page, opinion “concurring in the judgment.” Concurrence, Alito, J., at 1. And Justice Gorsuch filed a dissenting opinion that was joined by Chief Justice Roberts and Justice Thomas. Dissent, Gorsuch, J., at 1-33. Justice Kavanaugh did not participate in the decision since he was not on the …


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Categories: delegation, Sex offender registration

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Favorable decision in a First Step Act case, concerning the defendant’s eligibility for relief and the nature of the proceeding under the Act: United States v. Rose, No. 03-CR-1501, _F.3d_, 2019 WL 2314479 (S.D.N.Y. May 24, 2019)

Section 404 of the First Step Act of 2018,  Pub. L. No. 115-391, 132 Stat. 5194 (2018),  empowers district courts to “impose a reduced sentence” on people who were convicted of certain cocaine base (crack cocaine) offenses before August 3, 2010, when the Fair Sentencing Act of 2010 was enacted. It makes retroactive — to defendants sentenced before August 3, 2010 — the provisions of the Fair Sentencing Act that raised from 50 to 280 grams, the quantity of crack cocaine necessary to trigger the enhanced penalties of § 841(b)(1)(A); and raised from 5 grams to 28 grams the quantity of crack cocaine necessary to trigger the enhanced penalties of § 841(b)(1)(B).

The two movants in  United States v. Rose, No 03-CR-1501,  __F.3d__,   2019 WL 2314479 (S.D.N.Y. May 24, 2019) (VEC), had been convicted at a trial, in 2005, of conspiracy to distribute 50 grams or more of crack …


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Categories: fair sentencing act, First Step Act of 2018

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Tuesday, June 18th, 2019

Supreme Court declines to overturn the dual sovereignty doctrine

In Gamble v. United States, No. 17-646, decided on June 17, 2019, the Supreme Court declined to overturn its “dual-sovereignty” doctrine — in the face of a Double Jeopardy challenge — in a 7-2 decision written by Justice Alito. Gamble v. United States, No. 17-646, 2019 WL 2493923 (June 17, 2019).

Terance Gamble was convicted in Alabama under the state’s felon-in-possession-of-a-firearm statute, after local police found a gun in his car during a traffic stop. He was sentenced to 1 year in prison (10 years’ imprisonment with all but 1 year suspended). He then was subjected to a second prosecution for the same conduct “by the United States under its own felon-in-possession law. ” Op. at 1. After Gamble’s motion to dismiss on double jeopardy grounds was denied, he pleaded guilty to the federal offense and was sentenced to 4 years in federal prison. The Eleventh Circuit affirmed …

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Categories: double jeopardy

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Categories: double jeopardy

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