Author Archive | Allegra Glashausser

In United States v. Gates, the Second Circuit today affirmed a 45-year sentence for a person with no criminal history, who was convicted of three counts related to sexual exploitation of her child based on five images found on the child’s father’s phone. (Even though the child’s father, unlike Gates, had thousands of additional images of child pornography as well as a criminal history, he received the same sentence as Gates). The Circuit appeared completely unmoved by her argument that her sentence was substantively unreasonable, failing to engage with or even mention any facts about Gates’s personal background.

The Circuit, however, did find that the district court erred in at least two ways. First, the Circuit found that the district court improperly counted a conspiracy count as a separate group. But, the Circuit said, this error was harmless because the offense level was so high that it would still …

This week, in United States v. Daniels, the Fifth Circuit held that a person’s conviction under 922(g)(3) was unconstitutional following Bruen. The facts of Daniels are straightforward: Daniels was found with guns and marijuana in his car and then admitted he was a habitual marijuana user. He was charged and convicted of violating Section 922(g)(3). The Fifth Circuit reversed, holding that history and tradition did not justify disarming a “sober citizen based exclusively on his past drug usage.”

Although 922(g)(3) isn’t a a common charge, there is helpful language in the Daniels opinion for Bruen motions under 922(g)(1). And, the steady drumbeat of 922(g) reversals will hopefully give judges pause in relying on pre-Bruen decisions without a careful analysis.

In Daniels, the government relied on the same language and history that they point to for 922(g)(1) cases. The Fifth Circuit roundly rejected those arguments. The Circuit …

In a big defense win, last week, the Second Circuit reversed Anthony Molina’s conviction of five counts of robbery and brandishing, for two independent reasons. Judge Raggi wrote the decision. First, the Circuit held that the trial court should have conducted a Franks hearing and remanded for the court to hold one. The facts underling this issue are complicated. But, in short, the government conceded that there were errors in the warrant applications – these errors ranged from using the incorrect date of the crime, to attributing phone numbers to the wrong people, to stating there was evidence co-conspirators had communicated close in time to the robberies, when the government did not have evidence of that. The opinion explains in detail how these errors flowed together to give the magistrate the wrong impression about probable cause. Some of the highlights of the decision on this issue:

• The government argued unsuccessfully

Today, in United States v. Lewis, the Second Circuit strongly reaffirmed that the Circuit has no “categorical rule” about Fourth Amendment standing over shared spaces in multi-unit buildings. On the contrary, the Circuit noted that people who live in single-family homes should not have greater Fourth Amendment protections then people in multi-unit buildings. It counseled that courts should use an “individualized approach” to assess a person’s privacy interest over any shared spaces.

Unfortunately for Vashun Lewis, however, the Circuit still found that he hadn’t shown a reasonable expectation of privacy over a back “porch” area that led to a common stairway. (The area described as a porch seems to have been inside the building, although it is not entirely clear from the decision). The Circuit said that Lewis had “neither pointed to any relevant evidence nor made any arguments pertinent to his reasonable expectation of privacy over the porch.”…

In 2004, Lawrence Savoca was convicted for using a gun during an attempt to commit Hobbs Act robbery. Since Johnson was decided in 2016, he has been trying to get this 924(c) conviction vacated in lengthy litigation involving three trips to the Second Circuit. First, the Circuit granted his request to file a successive habeas petition. But then the district court dismissed his motion, holding that it wasn’t based on a new rule of constitutional law. Second, Savoca appealed and the Second Circuit affirmed.

But, Savoca (and Ed Zas of the Federal Defenders) wasn’t done. After the Supreme Court decided Taylor, Savoca filed a rehearing petition. Yesterday, in a third ruling on this case, the Second Circuit vacated their original decision about 924(c) and remanded to the district court.

Unfortunately for Savoca though, he hasn’t fully won, at least not yet. Even though the Supreme Court has made …

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 …

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 …

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.…

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 …

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 …