Author Archive | Allegra Glashausser

Friday, August 12th, 2022

Factual dispute at sentencing? Object, object, and object again!

Yesterday, in United States v. Cherimond, the Second Circuit remanded a sentence for the defense to make a fuller objection.

Here’s what happened: at sentencing, the district court upwardly departed based on pending and dismissed charges. Defense counsel objected to the departure and added that the defense was “not consenting or conceding to the allegations of fact in any of those cases.” Counsel said this in a few different ways: it was “not conceding any of the factual recitations are accurate,” and later that the defense had “said repeatedly we’re not conceding.” It seems clear, right? The defense objected. But – at one point, counsel said that “certainly the Court can take [the allegations] into account if it wants.” Counsel then again said that it “wouldn’t be appropriate” to do so.

On appeal, the Circuit discussed counsel’s comments at some length, saying counsel “signaled an objection,” but also “appeared …

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Over dissent, sentencing enhancement for body-armor upheld even though person didn’t know a co-conspirator was wearing body armor

After a trial, Anael Sainfil was convicted of bank robbery on a theory that he was the lookout, who stayed outside the bank. At sentencing, the court enhanced his guidelines because a co-conspirator, who entered the bank, wore a bulletproof vest. On appeal, two judges upheld the enhancement, saying that even though Mr. Sainfil didn’t know about the bulletproof vest, it was foreseeable that someone would wear a bulletproof vest during an armed robbery.

Judge Jacobs dissented, saying that the majority “sweeps too broadly” by essentially holding that is is always foreseeable that someone else may wear body armor. Jacobs writes: “True, body armor is not (yet) a fashion statement and is rarely (if ever) worn when there is no risk of gunfire. But that does not mean that whenever there is a risk of gunfire the use of body armor follows.” According to Jacobs, the majority “reduces reasonable foreseeability …

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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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Wednesday, November 18th, 2020

Assaulting a federal officer under 18 USC 111(b) is categorically a crime of violence.

Last week, the Circuit closed the door on any Davis issue relating to 18 U.S.C. § 111(b), holding that 18 U.S.C. § 111(b) is a crime of violence. Even though this was a matter of first impression for the Circuit, it issued a per curiam decision without ordering full briefing (or indeed any briefing by the government). Instead, it simply denied a motion for a certificate of appealability to Mr. Gray finding that the “use” of a dangerous weapon and the infliction of bodily injury in the course of a § 111(b) assault or battery necessarily involves the use of physical force as defined in 18 U.S.C. § 924(c)(3)(A).

Only one bit of small good news: the Court did not address whether 18 U.S.C. § 111(a) is a crime of violence, so that remains open.…

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Tuesday, November 17th, 2020

International Parental Kidnapping Crime Act includes refusing to bring your children back to the US

Last week, the Circuit rejected an argument that the International Parental Kidnapping Crime Act was unconstitutionally vague as applied to a father who refused to bring his United States-citizen children to the US from Yemen to visit with their mother, even though the children had been living in Yemen for a number of years and he had not abducted them.

The facts, briefly

Mr. Houtar and his ex-wife have two daughters who were born in the United States. Both parents left their daughters in Yemen for some time, while they returned (separately) to the United States. While here, Mr. Houtar’s ex-wife sought custody of the girls, and the Family Court ordered Mr. Houtar to bring them back to the United States to visit with their mother. Instead, Mr. Houtar returned to Yemen himself. He might have remained there had he not applied for a new United States passport, triggering an …

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Monday, November 16th, 2020

Maximum supervised release sentence upheld. (Also, don’t forget to make your bed).

In a decision on Thursday, the Second Circuit upheld Betsy Ramos’s two-year sentence for a violation of supervised release, finding that a district court may take recidivism enhancements into account in determining whether the maximum potential term of imprisonment for a crime is more than 20 years, qualifying the crime as a Grade A violation, under 7B1.1 (a)(1)(B).

The facts underlying the Circuit opinion in this case are tragic. In 1998, Ms. Ramos was on supervised release following a drug courier conviction when her boyfriend, who physically abused Ms. Ramos, shot and killed a police officer. Her abusive boyfriend was also killed. For reasons the Circuit opinion does not fully explain, Ms. Ramos was convicted of reckless manslaughter and served more than 20 years in state custody. When Ms. Ramos was granted parole, she was charged with a violation of her supervised release based on the manslaughter conviction, and sentenced …

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Friday, December 27th, 2019

A two-judge majority finds a 17-year sentence “shockingly low”

Mincing no words, Judge Cabranes, writing for a two-judge majority, proclaimed today that a 17-year sentence was so “shockingly low [ ] that, if upheld, [it] would damage the administration of justice in our country.” Judge Hall, however, disagreed, saying that, “I fear the majority would prefer to substitute its sentencing preferences for that of the District Court.” Hall, who dissented in part and concurred in part, did not find the sentence shockingly low, and noted that the district court could give a similar sentence on remand. The decision is available here.

No surprise that these strong judicial reactions come in the context of a terrorism case. In brief: Fareed Mumuni, who was only 21 years old, pleaded guilty to an indictment charging him with, most seriously, conspiring to provide material support to ISIS and attempting to murder a federal agent. After considering numerous aggravating and mitigating factors, including …

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Friday, November 22nd, 2019

You’re not paranoid enough….and neither are your clients

The first challenge to a new breed of warrants is pending in the Eastern District of Virginia. Law enforcement is using “geofence” warrants to sweep up large amounts of data on all the cell phones in a particular geographic area. Rather than seeking a warrant for information about one person or one cell phone, these warrants seek information about all the cell phones that passed a location at the time of the crime. Paranoid yet?

Here, a bank robbery was committed, and the government had no suspects, so they got a warrant for Google to turn over data related to all smart phones that passed by a bank over the course of 2 hours one afternoon. Right by the bank was also a hotel, restaurant, mega church, and retirement home. Getting the early bird special at the Ruby Tuesday’s in Richmond? The government learned about it.

In a motion to

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Wednesday, November 20th, 2019

Who is “indigent”? $5,000 special assessment issue to watch out for

The Second Circuit today issued a Jacobson remand for the district court to explain how it decided that a person represented by the Federal Defenders office was still “non-indigent” under Section 2014(a). (See the summary order in United States v. Rosario). For those who haven’t encountered this issue yet, section 2014(a) is the “Justice for Victims Trafficking Act,” which mandates a $5,000 – rather than $100 – special assessment for any “non-indigent” person convicted of certain sex offenses. “Indigent” isn’t defined. Although there do seem to be some good proxies the court could use – qualification for appointed counsel or a determination that a fine is inappropriate – so far, the Circuit has offered little guidance. Maybe they will when Rosario comes back before the panel.

In the meantime, object to the $5,000 special assessment if you have any argument your client is indigent. It may seem like a …


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Thursday, September 12th, 2019

EDNY: Officers’ good intentions can’t save unconstitutional general warrant

When agents came to search his business, Mr. Drago asked, why and what crime was being investigated? The agents said, look at the warrant. But…the warrant didn’t say what crime they were investigating. Instead, it completely failed to state any crimes at all. Even the government admitted the warrant was invalid. But, it argued that they didn’t mean to draft an unconstitutional warrant and that they were protected by their good faith intentions.

In a lengthy report and recommendation issued this week, an EDNY magistrate judge rejected that argument. The judge wrote: the “lack of intent to create a bad warrant (or to cover-up that error) does not automatically translate into a finding of objective good faith belief that the conduct was lawful.”  Instead, the conduct of the search was “sufficiently reckless such that no objective officer could have believed that they were acting in good faith.”

A rare defense …

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Wednesday, September 11th, 2019

SCOTUS watch: Is a car stop legal even when the police officer doesn’t see a traffic infraction?

Unfortunately, the Supreme Court might decide that the answer is yes. The Supreme Court has granted cert in a case out of Kansas, in which a police officer ran the license plate of a passing car (for reasons unexplained in the Kansas decision given that there was no traffic infraction) and saw that the registered owner had a suspended driver’s license. Based only on that – and with no information about whether the owner was actually driving – the police pulled over the car. Mr. Glover, who was the owner and did not have a valid driver’s license, was charged with “driving as a habitual violator.”

The Kansas Supreme Court held that the officer did not have reasonable suspicion to pull over the car and suppressed the evidence (which in this case, seems to only be the fact that Mr. Glover was, indeed, driving). That sounds right! But Kansas sought …

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