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Author Archive | Anthony O'Rourke

Wednesday, January 10th, 2018

Burdens of Proof & Restitution Under The MVRA

Yesterday the Second Circuit issued a short opinion concerning the burdens of proof for modifying restitution orders under the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. §§ 3663A & 3664. Specifically, the panel held that the district court acted within its discretion in requiring the defendant to prove that a victim recovered money in civil litigation “for the same loss” caused by the defendant. Id. § 3664(j)(2) (requiring that a restitution order be reduced by the amount of such recoveries). The opinion in United States v. Smathers, No. 16-2394 (Kearse, Cabranes, Wesley) (per curiam) (appeal from Hellerstein, J., SDNY), is available here.

Mr. Smathers, a former AOL employee, was ordered to pay $84,000 in restitution to AOL in connection with his conviction for selling the company’s customer list to be used for spam. Through his attorney, Mr. Smathers requested that the district court determine whether this restitution order …

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Categories: burden of proof, MVRA, restitution

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Categories: burden of proof, MVRA, restitution

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Tuesday, January 9th, 2018

Federal Defender Fact Sheet Challenging Link Between Judicial Discretion and Racial Sentencing Disparities

The Federal Defenders Guidelines and Legislative Committees have released a fact sheet, available here, critiquing a recent Sentencing Commission report which concludes that racial disparities in sentencing have increased in the wake of Booker. 

In November 2017, the Sentencing Commission released a report concluding that “the gap between the sentence lengths for Black and White male offenders [has] increas[ed]”post-Booker. Opponents of discretionary sentencing have cited (and misused) this finding to argue for mandatory sentencing regimes. The Federal Defenders’ fact sheet takes issue with the Commission’s failure to address some recurrent criticisms of the statistical model it uses to reach its conclusions. These include the Commission’s failure to account for the racially disparate impacts of (1) mandatory minimums, (2) prosecutors’ charging and bargaining decision, and (3) certain sentencing guideline provisions. As the fact sheet explains:

Racial disparity is a serious problem in the federal criminal justice system.

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Categories: Booker, sentencing

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Categories: Booker, sentencing

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Tuesday, January 2nd, 2018

Second Circuit Reverses Denial of USSG §3E.1.1(b) Sentencing Reduction

Today the Second Circuit vacated a sentence as procedurally unreasonable because the sentencing judge withheld the third point of a Guideline reduction for acceptance of responsibility. The summary order in United States v. Reyes, No. 16-2936 (Winter, Lynch, Droney) (appeal from Townes, J., EDNY), is available here.

Mr. Reyes was sentenced to life imprisonment after pleading guilty to conspiracy to commit bank fraud and second-degree obstruction of justice murder. The government consistently stated that he deserved a full three-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. The district court granted a two-level reduction under § 3E1.1(a), but denied an additional one-level reduction under § 3E1.1(b) on the ground that Mr. Reyes lied during his sentencing testimony about whether he was present when the murder was committed. (The defendant maintained at sentencing that he hired someone to kill a witness to a bank fraud scheme, but told …

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Categories: acceptance of responsibility, procedural reasonableness

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Categories: acceptance of responsibility, procedural reasonableness

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Friday, December 29th, 2017

EDNY Requires Government to Choose Between Complying With Bail Reform Act and Detaining for Immigration Removal

In an otherwise slow holiday week, Eastern District Chief Judge Irizarry has reaffirmed that ICE cannot detain noncitizens who are being federally prosecuted and have met their bond conditions. The opinion in United States v. Benzadon Boutin, No. 17-cr-590 (DLI), is available here. The decision is the latest in the “Trujillo” line of cases, see United States v. Trujillo-Alvarez, 900 F. Supp. 2d 1167 (D. Or. 2012). This case law now include two opinions by Chief Judge Irizarry and one by Southern District Judge Carproni. (Our discussion of Judge Caproni’s opinion includes suggestions for attorneys considering whether to file a “Trujillo” motion.)

Mr. Benzadon Boutin was indicted for theft of public property and money laundering. He satisfied his bond conditions, but was nevertheless kept in custody pursuant to an ICE detainer. Chief Judge Irrizarry held that “once a criminal prosecution is initiated and …

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Categories: bail, ICE detention

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Categories: bail, ICE detention

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Thursday, December 21st, 2017

Second Circuit Holds that First-Degree Robbery is a Violent Felony Under the ACCA

In a disappointing but relatively narrow opinion, the Second Circuit held yesterday that first-degree New York robbery is a violent felony for purposes of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). The opinion in United States v. Stuckey, No. 16-4133 (Chin, Droney, Restani (Ct. Intl. Trade) (appeal from Oetken, J., SDNY), is available here. Significantly, the panel expressly declined to address whether second- or third-degree New York robbery is a violent felony under the ACCA — and its holding does not speak to those questions.

The issue in Stuckey is whether, in order to constitute a violent felony under ACCA, an offense must require that a defendant intend to use violent force. Specifically, the issue is whether an offense can constitute a violent felony under the ACCA if it involves the degree of force required under Johnson v. United States (“Johnson I”), …

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Categories: ACCA, categorical approach, crime of violence, robbery

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Categories: ACCA, categorical approach, crime of violence, robbery

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Wednesday, December 20th, 2017

Second Circuit Holds that a Request for Cooperation Can Constitute an Interrogation

Today the Second Circuit concluded that a request for cooperation can constitute an interrogation for Miranda purposes. United States v. Familetti, No. 16-2334 (Jacobs, Sack, Parker) (appeal from Preska, J., S.D.N.Y.). The Circuit held, however, that the defendant in Familetti was not under custody when the cooperation request occurred — notwithstanding that he had earlier been handcuffed while suffering a panic attack. The short opinion in Familetti, available here, offers mixed blessings to defendants, but includes excellent language as to when a request for cooperation crosses a line to become a full-blown interrogation.

Investigators executed a search warrant of Mr. Familetti’s apartment after he offered money to an undercover agent in exchange for sexual favors with a minor. As described in the opinion:

Familetti suffered an extreme panic attack as the agents entered, and two agents were needed to restrain him, push him against the

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Categories: Miranda

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Tuesday, December 19th, 2017

New District Court Opinions Hold That Neither New York Robbery Nor First-Degree Sexual Abuse are Violent Felonies Under the ACCA

In recent weeks both the Eastern and Southern Districts have issued useful opinions on the scope of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). In summary, these opinions conclude that none of the following New York offenses is a “violent felony” within the meaning of the ACCA: (1) second-degree robbery and attempted robbery, N.Y. Penal Law §160.10; (2) attempted third-degree robbery N.Y. Penal Law §160.10; and (3) first-degree sexual abuse, N.Y. Penal Law § 130.65. For those grappling with Johnson issues, the relatively short opinions may be worth reading in their entirety.

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In the Southern District, Judge Rakoff issued an opinion holding that neither second- nor third-degree NY robbery offenses are violent felonies under the ACCA. See Austin v. United States, 16-cv-4446, available here. As Judge Rakoff notes, the Second Circuit reached the same result with respect to the Career Offender Guideline, U.S.S.G. § …

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Categories: ACCA, categorical approach, robbery, sex offenses

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Thursday, December 14th, 2017

Second Circuit on the Exclusion Non-Hearsay Evidence Concerning the Advice of Counsel Defense

Yesterday, in a published opinion, the Second Circuit reversed the convictions in an off-label drug importing case because the district court erroneously excluded evidence concerning the advice of counsel defense. The opinion in United States v. Scully, No. 16-3073 (Pooler, Lynch, Cogan (by designation) (appeal from Spatt, J., EDNY) is available here. The opinion touches on hearsay issues that arise beyond the fraud context.

The defendants in Scully were charged with fraud, conspiracy, and drug importation counts resulting from a “parallel importing” scheme: that is, the defendants’ company would import foreign versions of FDA-approved drugs and sell them at a reduced rate. One of the defendants cooperated and, at trial, the other defendant (Scully) advanced an advice-of-counsel defense. The defense sought to introduce evidence of an attorney’s legal advice through Scully’s own testimony, and elicited the following exchange during its direct examination of Scully:

Q. Did Mr.

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Categories: evidence, fraud, hearsay, jury instructions, Uncategorized

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Categories: evidence, fraud, hearsay, jury instructions, Uncategorized

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Tuesday, December 12th, 2017

Second Circuit Vacates Above-Guidelines Illegal Reentry Sentence As Procedurally and Substantively Unreasonable

Today the Second Circuit issued an opinion vacating a 60-month illegal reentry sentence as both procedurally and substantively unreasonable. The opinion in United States v. Latchman Singh, No. 16-1111 (Kearse, Hall, Chin) (appeal from Forrest, J., SDNY), is available here. Judge Chin’s opinion touches on a number of recurring sentencing issues, and includes an important analysis of the distinction between presenting mitigating evidence and avoiding responsibility for one’s crimes.

Mr. Singh pleaded guilty to one count of illegal reentry after being removed following an aggravated felony conviction, see 8 U.S.C. § 1326(b). His record includes a number of convictions for non-violent offenses, several of which occurred more than a decade ago. The 15-21 Guidelines range for Mr. Singh’s sentence reflected a 3-level reduction for acceptance of responsibility. Prior to sentencing, he wrote a letter to the district court expressing remorse his actions and explaining the pressures that …

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Categories: acceptance of responsibility, illegal reentry, procedural reasonableness, sentencing, sentencing findings, substantive reasonableness

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Recent Cert. Grants

The Supreme Court recently granted certiorari in three criminal cases, the availability of sentencing reductions pursuant to 18 U.S.C. § 3582(c)(2) when a Guidelines sentencing range is retroactively lowered:

Hughes v. United States, No. 17-155
Question Presented: Whether, as a four-justice plurality in Freeman v. United States concluded, a defendant who enters into a Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement is generally eligible for a sentence reduction if there is a later, retroactive amendment to the relevant Sentencing Guidelines range.

Cert. papers and opinion below available here:

Hughes v. United States

Koons v. United States, No. 17-1756
Question Presented: Whether a defendant who is subject to a statutory mandatory minimum sentence, but who substantially assisted the government and received a sentence below the mandatory minimum pursuant to 18 U.S.C. § 3553(e), is eligible for a further sentence reduction under 18 U.S.C. § 3582(c)(2), when the Sentencing …

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Categories: 3582(c)(2), interlocutory

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Friday, December 8th, 2017

Judge Weinstein on Incapicitory Sentencing

Today Eastern District Judge Weinstein issued a carefully researched opinion explaining the relatively lengthy—and in one case statutorily mandated—sentences of three adolescent defendants who each pled guilty to one count of brandishing a firearm. The opinion, available here, includes a balanced and detailed critique of the current methods to punish and rehabilitate young offenders who commit violent crimes, but for whom lengthy prison sentences are not necessarily appropriate.

From Judge Weinstein’s opinion:

Defendants—all adolescents—were gang-members, typically from impoverished and broken families.

They present the court with a number of troubling sentencing issues: (1) the need to prevent future acts of violence by gang members who, because of their home environment, and past affiliations, may be unable to escape the strictures of gang control; (2) the requirement that a sentencing court consider a defendant’s age, potential for rehabilitation, and culpability when crafting a sentence; (3) the limited ability of the

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Categories: mandatory minimum, sentencing, sentencing findings, youthful offender adjudication

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