Federal Defenders of New York Second Circuit Blog


Thursday, June 4th, 2020

Under 18 U.S.C. § 3582(c)(2), district courts may not reduce a sentence below the bottom of the amended Guidelines range based on a § 5G1.3(b) adjustment at the original sentencing.

In United States v. Zapatero, No. 18-3829 (2d Cir. June 3, 2020) (Hall, Sullivan, and Bianco), the Circuit held that the plain language of 18 U.S.C. § 3582(c)(2), and its incorporated Guidelines provisions, preclude a district court from reducing a sentence below the amended Guidelines range based on a § 5G1.3(b) adjustment at the original sentencing.

Zapatero was originally sentenced in the District of Vermont to 168 month of imprisonment, below the then-applicable Guidelines range of 210-262 months. The court directed that the sentence should run concurrently with an undischarged 51-month prison term previously imposed in the Southern District of New York. And the court also directed that Zapatero receive “credit” toward his Vermont sentence from the time his detention began in Vermont, even though the credit would also include time spent in custody on the New York case. Zapatero characterized this purported granting of “credit” as a sentence …

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Categories: 3582(c)(2)

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Wednesday, June 3rd, 2020

The Second Circuit vacates and remands for resentencing because of the erroneous application of the Sentencing Guidelines enhancements for possessing a “dangerous weapon” (§ 2B3.1, cmt. n.2) and “physical restraint” (§ 2B3.1(b)(4)(B)) – – which increase the offense level for robbery offenses. United States v. Taylor, No. 18-1710,  __F.3d__, 2020 WL 2745536  (May 27,  2020). 

In United States v. Taylor, the Circuit interprets two provisions of the Sentencing Guidelines that increase the offense level for robbery. It concludes that the sparse facts “set forth in the Presentence Report (PSR), upon which the district court relied at sentencing, are insufficient to support the application of either enhancement.” 2020 WL 2745536 at *1.

First, the Circuit holds that a defendant’s “hand” doesn’t become an “object” qualifying for the “dangerous weapon” enhancement when he gestures (with his hand) that he has a gun in his belt, but he’s actually unarmed and doesn’t have an object that “resembles” a gun. See U.S.S.G.§ 2B3.1(b)(2)(E).

Second, on the physical restraint enhancement, the Circuit holds that a robber’s act of ordering  a person to move from one room into another room — without actually retraining the person or locking the person in a room — doesn’t qualify as “physical[] restrain[t]” under …

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Categories: breach, guideline, robbery

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Categories: breach, guideline, robbery

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Circuit affirms convictions arising from usurious and fraudulent lending scheme.

In United States v. Tucker, No. 18-181(L) (2d Cir. June 2, 2020) (Leval, Pooler, and Parker), the Second Circuit unanimously affirmed Muir’s and Tucker’s convictions arising from their operation of an illegal payday lending scheme.

The central issue on appeal concerned the jury instructions regarding “willfulness.” The trial judge instructed the jury with respect to several counts that the defendants acted willfully if they knew of the high interest rates being charged to borrowers, even if the defendants believed the lending was lawful. The defendants, however, failed to object to the jury instructions after they were given, as generally required by Fed. R. Crim. P. 30. Thus, the Circuit held, the defendants’ had to satisfy the demanding “plain error” standard to prevail on appeal.

The Circuit ruled that, even if the challenged “willfulness” instruction was erroneous—an issue it did not resolve—any error was not reversible plain error. The Court …


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Tuesday, June 2nd, 2020

Supreme Court Holds that a Motion to Alter or Amend a Judgment Under Civil Rule 59(e) Is Not a Second or Successive Habeas Petition.

In Bannister v. Davis, No. 18-6943 (June 1, 2020), the Supreme Court today held that a motion to alter or amend a judgment under Fed. R. Civ. P. 59(e) is not a “second or successive” petition for habeas corpus purposes. The vote was 7–2, with only Justices Alito and Thomas dissenting.

Justice Kagan’s opinion for the Court begins this way:

A state prisoner is entitled to one fair opportunity to seek federal habeas relief from his conviction. But he may not usually make a “second or successive habeas corpus application.” 28 U.S.C. §2244(b). The question here is whether a motion brought under Federal Rule of Civil Procedure 59(e) to alter or amend a habeas court’s judgment qualifies as such a successive petition. We hold it does not. A Rule 59(e) motion is instead part and parcel of the first habeas proceeding.

And the Court’s opinion concludes as follows:

Our …

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Wednesday, May 27th, 2020

Second Circuit defines “altered” serial number on a firearm for purposes of the four-level enhancement under U.S.S.G. § 2K2.1(b)(4)(B) to mean that at least one serial number on the firearm is illegible to the naked eye.

In United States v. St. Hilaire, __F.3d__, 2020 WL 2563112 (2d Cir. May 21, 2020), the Second Circuit, in an opinion by Judge Jacobs (joined by Judges Calabresi and Chin), for the first time addressed the meaning of the four-level sentencing guideline enhancement for possessing a firearm with “an altered or obliterated serial number,” under U.S.S.G. § 2K2.1(b)(4)(B). Looking to the rulings of other Circuits, the Second Circuit ruled on two distinct issues pertaining to the enhancement. First, the Court concluded that although a gun may have its serial number on multiple locations, the enhancement applies even if the serial number is “altered or obliterated” in only one of multiple locations. Second, the Court held that for a serial number to be deemed “altered,” the number must be illegible to the naked eye and not merely defaced. The Court affirmed the application of the enhancement in this case based …

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Categories: 922(g), firearms, sentencing

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Tuesday, May 26th, 2020

Judge Menashi’s First Criminal Opinion Goes Against the Defendant

In US v. Richardson, #19-412, Judge Menashi, joined by Judges Walker and Chin, affirmed the district court’s ruling that the defendant qualified as a career offender. The defendant’s prior offenses were (1) federal conspiracy to distribute and possess with intent to distribute cocaine (21 USC §§ 841 (a) (1) & 846) and (2) New York attempted possession of a controlled substance in the third degree (N.Y. Penal Law §§ 110.00/220.16(1)).

The issue on appeal was whether each of these offenses is a “controlled substance offense” under USSG § 4B1.2. A “controlled substance offense” is defined as “an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance … or the possession of a controlled substance … with intent to manufacture, import, export, distribute, or dispense.” USSG § 4B1.2(b). Application note 1 …


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Second Circuit Rules that Conviction Stands for Defendant Who Died While His Appeal Was Pending

In the Anglo-American legal tradition, if the accused dies before a conviction becomes final, the conviction is vacated and the indictment is dismissed. This is called “abatement” of the conviction, and hopefully most of you have not encountered it. The idea is that the defendant will now face the Lord’s justice, not the King’s, and that the family should not have to live with the stigma of a conviction that was not final.

The defendant in US v. Mladen, 18-0616, died during the pendency of his appeal, but the Second Circuit decided that abatement was too generous a remedy for him. The opinion is by Judge Kearse, joined by Judges Walker and Livingston. Perhaps the problem was that, although convicted only of one count of 18 USC § 1001, he also admitted to making anonymous threats against a federal judge. Then, while in jail awaiting sentence in this case, …

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Second Circuit Holds that Only One JVTA Assessment is Permitted even where there are Multiple Counts of Conviction

The defendant in US v. Haverkamp, 18-3735, pleaded guilty to one count of distribution and receipt of child pornography and one count of possession of child pornography. He was sentenced to 121 months in prison. In addition, the district court imposed the $100 mandatory special assessment under 18 USC § 3013 on each count. The court also imposed the $5000 assessment under 18 USC § 3014 on each count. The latter assessment, applicable only to certain offenses, was added to the law in 2015 by the Justice for Victims of Trafficking Act, and is commonly known as the JVTA assessment.

On appeal, in an opinion by Judge Parker, joined by Judges Sack and Chin, the Second Circuit held that only one JVTA assessment is permitted for any defendant even if there are multiple eligible counts of conviction. The Court relied principally on the language of § 3014, which instructs …

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Monday, May 11th, 2020

Supreme Court Reverses Ninth Circuit for Bypassing the Adversary System

A Supreme Court term is not complete without a few slap downs of the Ninth Circuit such as this one.

The defendant in United States v. Sineneng-Smith operated an immigration consulting business in California.  Between 2001 and 2008, she charged unwitting clients for help in applying to a path-to-citizenship program even though she knew the program had expired.  The clients paid over $6000 each, for a total of more than $3.3 million.  The defendant was convicted of violating, inter alia, 8 USC § 1324(a)(1)(A)(iv).  Defense counsel argued that the statute did not cover her conduct and that, if it did, the statute violated her First Amendment rights to free speech and to petition the government.

On appeal, a panel of the Ninth Circuit appointed amici to raise additional issues framed by the panel.  It then reversed the conviction on one of those issues, holding that the statute is unconstitutionally overbroad.  …


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Unanimous Supreme Court Tosses Bridgegate Conviction

Kelly v. United States concerns New Jersey’s well-known Bridgegate scandal, where officials with ties to Gov. Chris Christie decided to punish the residents of Ft. Lee because their mayor would not endorse Christie for reelection in 2013.  So, beginning on the first day of school, and under the guise of a traffic study, the defendants arranged for the three toll lanes of the George Washington Bridge usually reserved for Ft. Lee traffic to be reduced to one.  This created a traffic armageddon in Ft. Lee, jeopardizing community safety.

The defendants were fired, federally indicted, and convicted of crimes involving wire fraud and federal program fraud.  The convictions were affirmed by the Third Circuit.

On May 8, the Supreme Court unanimously reversed the convictions in an opinion by Justice Kagan.  The Court agreed that corruption and abuse of power occurred in this case, but “not every corrupt act by state or …

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Categories: fraud, wire fraud

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Friday, May 1st, 2020

Pop off, G-Unit

In a murder-for-hire trial, is it constitutional for a defense attorney to concede—over his client’s objection—that the client hired someone to shoot at the victim (an element of the offense), but argue that the client did not intend for the victim to die?

This may seem like a strange strategic choice, but it starts to make more sense in context. On May 1, 2020, in United States v. James Rosemond, No. 18-3561, the Second Circuit takes a foray into the world of hip hop while considering a defendant’s Sixth Amendment autonomy rights.

Rosemond, aka “Jimmy Henchman,” was a manager and music executive whose Czar Entertainment managed, among others, The Game, Brandy, Gucci Mane, and Salt-n-Pepa. Czar had a rivalry with Violator Records, whose offices were located across the street. Violence ensued. Per the Second Circuit,

The rivalry intensified in February 2005. At that time, Czar represented rapper Jayceon Taylor,

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