Federal Defenders of New York Second Circuit Blog


Thursday, November 17th, 2022

Defendants may not use a purported motion to correct a sentence under Rule 35 to circumvent an appeal waiver.

The Circuit held today, in United States v. Rakhmatov, No. 21-151(L) (2d Cir. Nov. 17, 2022), that “when a challenge to a prison sentence purportedly under [Fed. R. Crim. P.] 35(a) does not fall within the narrow scope of Rule 35(a), an appeal waiver can bar consideration of the motion.”

Rakhmatov pleaded guilty to conspiracy to provide material support to a terrorist group. His plea agreement said he would not appeal or “otherwise challenge” any prison sentence of 150 months or less.

Three days after being sentenced to 150 months, Rakhmatov moved to correct the sentence, citing Rule 35(a).  The motion argued that the district court “failed to properly apply the sentencing factors,” producing a sentence that was “unreasonable” and “greater than necessary.”  The district court denied the motion, holding that it was not a proper Rule 35(a) motion and, in any event, was barred by the appeal waiver. …

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Wednesday, November 16th, 2022

Supreme Court to Clarify the Scope of Aggravated Identity Theft

In case you missed it, the Supreme Court recently granted certiorari in Dubin v. United States, No. 22-10, which presents the question whether a person commits aggravated identity theft any time he or she mentions or otherwise recites someone else’s name while committing a predicate offense.

David Dubin was convicted of Medicaid fraud. As the case arrives at the Supreme Court, he is challenging a separate conviction under a federal law (18 U.S.C. § 1028A(a)(1)) that makes it a crime to use another person’s “means of identification” during and in relation to certain other crimes, including healthcare fraud. Federal prosecutors contend that Dubin’s use of his patient’s name on a false Medicaid claim violated the statute, adding an extra two years to his one-year sentence for fraud.

A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit upheld Dubin’s conviction and sentence, and on rehearing a …

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Thursday, November 3rd, 2022

Conviction Affirmed on Ground Not Initially Briefed by the Government and First Raised by Court at Oral Argument

In United States v. Graham, No. 20-832 (2d Cir. Oct. 14. 2022) (Park, joined by Walker; Pérez concurring separately in the judgment), the defendant was convicted after trial of conspiracy to commit mail, wire, and bank fraud. On appeal, she argued, inter alia, that her lawyer rendered ineffective assistance of counsel per Missouri v. Frye by failing to timely convey a pre-trial plea offer.

The facts as to counsel’s inaction were not in dispute. The government argued, in response, that the defendant needed to raise her claim in a Section 2255 motion, and had not established prejudice.

The appeal proceeded to oral argument where, it turns out, the Court had some questions about something else: waiver. More specifically, whether Graham had waived her ineffectiveness claim. Supplemental briefing was ordered.

Ultimately, the majority affirmed the conviction on the ground of . . . you guessed it . . . …

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Friday, October 7th, 2022

BIDEN’S MARIJUANA PARDONS MISS THE MARK FOR NONCITIZEN DEFENDANTS

The White House announced yesterday that President Biden would grant “full, complete, and unconditional” pardons to U.S. citizens and lawful residents previously convicted of simple possession of marijuana under 21 U.S.C. § 844(a) and D.C. Code 48-904.01(d)(1).  The move is intended to “help relieve the collateral consequences arising from these convictions,” and will doubtless help eligible individuals facing bars to employment, public housing, and some other civil disabilities.  But because of the Kafka-esque tangle that is immigration law, a presidential pardon may do little or nothing to relieve noncitizen defendants of what is likely the gravest consequences they face from a marijuana conviction—deportation or ineligibility for immigration status.  Clients who are eligible for the pardons should be advised that they may still face adverse immigration consequences even after a pardon is granted, and should consult an attorney expert in criminal-immigration issues prior to seeking one.  Read on for the gory …


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Wednesday, September 21st, 2022

Court must provide habeas petitioner with notice and an opportunity to respond before sua sponte dismissing the petition on procedural grounds

In Ethridge v. Bell, 2d Cir. No. 20-1685-pr (Sep. 20, 2022), a Panel of the Court (Lynch, Bianco, and Nardini), in an opinion by Judge Bianco, ruled that the district court erred when it sua sponte dismissed Ethridge’s § 2254 petition, challenging his New York drug and weapons conviction on the ground that state courts erroneously denied his motion to suppress a gun seized during an allegedly unlawful search, without giving him any notice or an opportunity to be heard. Before sua sponte dismissing a petition on procedural grounds, the Circuit ruled, a district court must give the petitioner notice of its contemplated decision as well as a genuine opportunity to respond.

The district court erred in dismissing Ethridge’s petition sua sponte by invoking Stone v. Powell, 428 U.S. 465 (1976), which “held that a petitioner may not obtain [federal] habeas relief under the Fourth Amendment on the …

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A sealed sentencing conducted by videoconference, which was not accessible to the public, does not implicate Rule 53’s ban on broadcasting judicial proceedings

In United States v. Sealed Defendant One, 2d Cir. No. 21-118 (Sep. 21, 2022), a Panel of the Court (Newman, Chin, and Sullivan), in an opinion by Judge Sullivan, principally ruled that a sealed sentencing proceeding, which occurred via Skype videoconferencing during the COVID-19 pandemic, did not violate Rule 53’s bar on the “broadcasting” of judicial proceedings. See Fed. R. Crim. P. 53 (“Except as otherwise provided by statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.”). This is so because the term “broadcasting” “clearly entails ‘public’ distribution to make something ‘widely’ known.” Op. 16-17 (emphases in original) (quoting Merriam-Webster’s online entry for “broadcast”). Because the sealed sentencing here occurred through a “closed” Skype call, which “no one other than Sealed Defendant, his wife, and …

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Thursday, September 8th, 2022

Three Interesting Cert. Petitions

Our friends at Scotusblog.com recently discussed three pending cert. petitions that present important and interesting criminal issues. Because these issues may arise in your practice, I note them again here so that you can preserve them for review:

  1. Shaw v. United States, No. 22-118.

Issues:  (1) Whether the jury clauses of Article III and the Sixth Amendment or the due process clause of the Fifth Amendment bar a court from imposing a more severe criminal sentence on the basis of conduct that a jury necessarily rejected, given its verdicts of acquittal on other counts at the same trial; (2) whether the Supreme Court’s decision in United States v. Watts should be overruled; and (3) whether, in avoidance of the constitutional question, the rules of issue preclusion, as applied in federal criminal cases, bar imposition of an aggravated sentence on a factual predicate necessarily rejected by the jury at trial …


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Tuesday, September 6th, 2022

A prior conviction under N.Y. Penal Law § 130.50(3) (1965) categorically “relates to” the sexual abuse of a minor, justifying the sentencing enhancements (for child pornography offenses) of 18 U.S.C. § 2252A(b)(1) and (b)(2) — which aren’t unconstitutionally vague. United States v. Ragonese, No. 20-3371-cr, __F.4th__ , 2022 WL 3903437 (2d Cir. Aug. 31, 2022) (Sack, Lynch, and Bianco, Circuit Judges).

  1.  The sentencing enhancements of 18 U.S.C.§ 2252A(b)(1) and (b)(2)

This case concerns the recidivist sentencing enhancements of the child pornography statute, 18 U.S.C. § 2252A. For offenses involving “possession” of child pornography, the penalty is 0 to 10 years’ imprisonment. For “receipt,” there’s a 5-year mandatory minimum prison sentence. But, if the defendant has a prior state conviction under a law “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward,” the minimum penalties are significantly enhanced: for possession, the minimum prison sentence increases from 0 years to 10 years; for receipt, the minimum increases from a 5-year prison term to 15 years. See18 U.S.C. § 2252A(b)(1) (receipt),  (b) (2) (possession). (The maxima also increase:  from 10 years to 20 years for possession, and from 20 years to 40 years for receipt).

In this case, Appellant pleaded guilty to one count of possessing …


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Friday, September 2nd, 2022

In a motion for Compassionate Release, “a district court does not have discretion to consider new evidence . . . attacking the validity of the underlying conviction” in weighing “the 18 U.S.C. § 3553(a) factors.” United States v. Amato (Victor Orena), No. 21-2747, __ F.4th ____ (2d Cir. June 15, amended Aug. 31, 2022) (per curiam) (C.J.J.’s Pooler, Sack, and Nathan).

(The opinion in this case was originally issued on June 15 2022, and published at 37 F.4th 58, but was withdrawn and “this amended opinion [was issued] in its place”). See ECF No. 85, Opinion of Aug. 31, 2022  (“Op.”)  at 3 n.1.

Appellant Victor Orena appealed the district court’s denial of his motion to reduce his life-sentence, pursuant to 18 U.S.C. § 3582(c)(1), “colloquially known as the ‘compassionate release’ provision,” which “permits a district court to reduce a previously imposed sentence ‘after considering the factors set forth in [18 U.S.C. § 3553(a)] to the extent that they are applicable, if it finds that … extraordinary and compelling reasons warrant such a reduction.” Op. at 2-3 (alterations in original)..

Orena argued primarily that the district court erred in denying his § 3582(c) motion “by refusing to consider new evidence that he says calls into question the validity of his conviction.” …


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Marijuana distribution is still a violation of 21 U.S.C. § 841(a)(1). The Second Circuit REJECTS the argument that marijuana’s inclusion in Schedule I of the Controlled Substance Act (“CSA”) lacks a rational basis and thus violates Fifth Amendment due process and equal protection rights. United States v. Green, Nos. 19-997(L), 19-1027 (Con), __F.4th__ , 2022 WL 3903654 (2d Cir. Aug. 31, 2022) (C.J.J. Sack and Bianco; D.J. Underhill).

Two Rochester, New York, marijuana entrepreneurs, “the Green Brothers,” asked the Circuit to strike down marijuana’s classification as a Schedule I drug as an unconstitutional violation of their due process and equal protection rights and, on that basis, dismiss the narcotics charges against them.  Green, 2022 WL 3903654 at **1-2.

“They argued that marijuana’s scheduling has no ‘rational basis’ because it does not meet the statutory criteria for Schedule I classification; that is, the CSA requires that a substance have no currently accepted medical use in treatment in the United States to fall under Schedule I, see 21 U.S.C. § 812(b)(1), and marijuana does have accepted medical uses.” Id. at *2.  The Circuit rejects this argument.

I. Background facts

“Alexander Green obtained hundreds of kilograms of marijuana from California which he shipped to his brother, Charles Green, in New York State” for distribution “in the Rochester, New York area.” …


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Thursday, August 25th, 2022

The government can garnish your 401(k) for restitution

In United States v. Greebel, 21-993-cr (2d Cir. Aug. 24, 2022), the Second Circuit holds that the Mandatory Victims Restitution Act (MVRA) enables the government to garnish a defendant’s retirement accounts to pay restitution.

Defendant Greebel was convicted of conspiracy to commit wire fraud and securities fraud and ordered to pay over $10 million in restitution. Pursuant to this restitution order, the government tried to garnish two of his 401(k) retirement accounts. The defendant objected. The Circuit found that these accounts’ plans permitted the defendant himself to withdraw lump-sums. And because the MVRA empowered the government to reach any property “in which the debtor has a substantial nonexempt interest,” allowing the government to “step[] into the defendant’s shoes, acquiring whatever rights the defendant himself possesses” to property, the funds were fair game for the government.

In so holding, the Circuit addressed a potential conflict between the MVRA and the …

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