Federal Defenders of New York Second Circuit Blog

Darrell Fields

“Time credits,” under the First Step Act (as calculated by the Bureau of Prisons), 18 U.S.C. § 3632. A person serving a prison term for multiple offenses of conviction can’t earn “time credits” — under § 3632(d)(4)(A)-(C) — if any of the offenses appear on the list of ineligible offenses in § 3632(d)(4)(D). Charles Giovinco v. Timethea Pullen, Warden, No. 23-251-pr, __ F.4th ____, 2024 WL 4438759 (2d Cir. Oct. 8, 2024) (Chief Judge Livingston; C.J.J.’s Lohier and Menashi).

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1. Background The Petitioner-Appellant appeals from the district court’s denial of a petition for a writ of habeas corpus, under 28 U.S.C. § 2241, in which he contended that the Bureau of Prisons (“BOP”) improperly denied him “earn[ed] time credits” under the First Step Act of 2018 (“FSA”), Pub. L. No. 115-391, 132 Stat. 5194. … Read more

The Government is seeking certiorari from Range v. Attorney General, United States, 69 F.4th 96 (3d Cir. 2023) (en banc), which held that 18 U.S.C. § 922(g)(1) was unconstitutional as applied to Bryan Range, whose predicate offense was a (1995) conviction for making a false statement to obtain government benefits. See Merrick B. Garland, Attorney General, et al. v. Bryan David Range, No. 23-374. The case is to be conferenced tomorrow, November 17, 2023.

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The Solicitor General filed the government’s petition for a writ of certiorari on October 5, 2023. Respondent Bryan Range’s papers were filed on October 18, 2023. The Solicitor General filed its reply on November 1, 2023. The Supreme Court docket is available at: https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/23-374.html

Supreme Court grants certiorari to an alleged drug courier (challenging a federal drug conviction) because the prosecution used an “expert witness” to rebut her defense that she didn’t know about the drugs that were hidden inside her car, which she said belonged to her boyfriend. Petitioner says the “expert” testimony violated Fed.R.Evid. 704(b).

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The Supreme Court granted certiorari in Diaz v. United States, No. 23-14 (cert. granted, Nov. 13, 2023). Discussions and relevant cert. papers are available here: https://www.scotusblog.com/case-files/cases/diaz-v-united-states/ The petition for certiorari frames the “Question Presented” as follows: Federal Rule of Evidence 704(b) provides: “In a criminual case, an expert witness must not state an opinion about … Read more

In a summary order, the Second Circuit vacates a district court’s judgment imposing a complete ban on internet use, as a condition of supervised release. The Circuit concludes that it’s “substantively unreasonable” to impose such a ban on someone whose offense involved child pornography, and no evidence suggested he “is likely to seek out children on social media or prey on them in reality.” United States v. Gonyea, Nos. 22-1722-cr, 22-1727-cr (2d Cir. Nov. 13, 2023) (C.J.J.’s Jacobs, Lohier, Lee) (“Summary Order”).

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I. Background In 2017, Appellant was convicted of one count “of receiving child pornography in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and (b)(1)” and sentenced to 72 months’  imprisonment “and a life term of supervised release.” Order at 3. In 2021, after his release from custody, Probation Officers discovered that he had “created two email … Read more

A Panel of the Second Circuit holds (over a dissent) that a non-citizen is removable for a crime involving moral turpitude “for which a sentence of one year or longer may be imposed” — under 8 U.S.C. § 1227(a)(2)(A)(i) — even though New York subsequently reduced the maximum sentence for Class A misdemeanors from one year to “364 days” and made the change retroactive. Vasquez v. Garland, No. 21-6380, __ F.4th ____ (2d Cir. Sept. 13, 2023) (C.J.J.’s Jacobs and Chin; C.J.J. Robinson dissenting).

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I. Background Under 8 U.S.C. § 1227(a)(2)(A)(i) —  which is Section 237(a)(2)(A)(i) of the Immigration and Nationality Act (“INA”) — a non-citizen “is deportable” if “convicted of a crime of moral turpitude” (committed within a specified period “after the date of admission”) “for which a sentence of one year or longer may be imposed.” (emphasis … Read more

By a 6-3 vote, the Supreme Court holds that a federal prisoner who has already filed (and exhausted) a motion under 28 U.S.C. § 2255 can’t file another postconviction motion to raise a claim of legal innocence based on an intervening statutory-interpretation-decision of  the Supreme Court.  Section 2255(h) bars second or successive 2255 motions based on non-constitutional claims; and the “saving clause” of § 2255(e) doesn’t authorize a petition for a “writ of habeas corpus,” under § 2241, for claims barred by § 2255(h). Jones v. Hendrix, Sup. Ct.  21-857, __U.S.. __  (June 22, 2023).

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Thomas, J.,  delivered the Court’s opinion. Sotomayor and Kagan, JJ., filed a dissenting opinion. Jackson, J.,  filed a dissenting opinion. Background In 2000, petitioner Marcus DeAngelo Jones was convicted of two counts “of unlawful possession of a firearm by a felon, in violation of 18 U. S. C. § 922(g)(1)” and sentenced to 327 months’ … Read more

The Second Circuit holds that, despite the erroneous jury instructions defining the “crime of violence” required for a § 924(c) conviction — allowing the jury to convict the Petitioners based on predicate offenses that didn’t necessarily require the actual or threatened use of force — the Petitioners failed to show that the instructional errors “resulted in prejudice that would entitle them to the relief they [sought] under 28 U.S.C. § 2255.” Nardino Colotti, et al. v. United States, Nos. 21-932(L), 21-937(CON), 21-950(CON), 21-992(CON), 21-1548(CON), __ F.4th ____ (2d Cir. June 21, 2023) (C.J.J.’s Leval, Parker, Menashi).

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Background This is an appeal from a district court judgment denying the Petitioners’ motions, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct their convictions under 18 U.S.C. § 924(c).  The Circuit affirms the district court. The Petitioners were convicted after a jury trial — conducted “in late 2005 and early 2006″ … Read more

(1) Evidence was sufficient to prove a violation of 18 U.S.C. § 2251(a) — which prohibits using a minor to engage in sexually explicit conduct to produce a visual depiction of that conduct — when the defendant created a video showing a fully clothed, sleeping teenager and the defendant (nearby) engaging in conduct with himself. (2) Also, a 5-level sentencing enhancement, for engaging in a “pattern of activity” involving “prohibited sexual conduct,” was proper — under U.S.S.G. § 4B1.5(b)(1) — based on the offense of conviction and proof (by a preponderance) of just one other prohibited act. (3) Finally, a 70-year prison sentence, the Circuit holds. isn’t substantively unreasonable. United States v. Osuba, No. 20-3322, __ F.4th ____ (2d Cir. Apr. 17, 2023) (C.J.J.’s Calabresi, Park, Nardini).

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I. The sufficiency of the evidence to prove the production count: 18 U.S.C. § 2251(a) Appellant challenged the sufficiency of the evidence supporting his conviction, after a jury trial, of violating 18 U.S.C. §  2251(a), which mandates a minimum 15-year prison term for: “Any person who employs, uses, persuades, induces, entices, or coerces any minor … Read more

Appellant’s submission of (three) “forged letters” of support, to the sentencing court, results in a 5-level increase in offense level: a two level upward adjustment for obstruction of justice (U.S.S.G. § 3C1.1) and the denial of a 3-level reduction for acceptance of responsibility (id. § 3E1.1). United States v. Strange, No. 21-2923, __ F.4th ____ (2d Cir. Apr. 17, 2023) (C.J.J.’s Pooler, Wesley, and Menashi).

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Background Appellant worked for a company that (generously) matched the charitable donations of its employees “up to $25,000 in donations per employee annually.” Opinion (“Op”) at 2. From 2015 to 2019, Appellant he “carried out a scheme to defraud” by “submitt[ing] fake documentation purporting to show that he, as well as some of his coworkers, … Read more

After a Supreme Court remand, a Circuit Panel concludes that the defendants’ fraud and conversion convictions should be reversed because the confidential information misappropriated from a federal regulatory agency didn’t constitute “property” or a “thing of value” (to the agency) for purposes of wire fraud, Title 18 securities fraud, and conversion (in violation of 18 U.S.C. §§ 1343, 1348, and 641). United States v. Blaszczak, Nos. 18-2811, 18-2825, 18-2867, 18-2878, __F.4th__, 2022 WL 17926047 (2d Cir. Dec. 27, 2022) (C.J.J. Kearse and Walker; Judge Sullivan dissents).

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After the Circuit’s original decision (in 2019) affirmed the fraud and conversion convictions of the four defendants (over a dissent by Judge Kearse), the Supreme Court granted cert., vacated the judgment, and “remanded for further consideration, in light of Kelly v. United States, ––– U.S. ––––, 140 S. Ct. 1565 (2020).”  See United States v. … Read more