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Author Archive | Yuanchung Lee

Wednesday, October 19th, 2016

Sooner or Later, the Career Offender Guideline Will Get You

In United States v. Anthony Lewis, Docket Nos. 15-3245-cr (L) & 15-3307-cr (CON), an unpublished summary order, the Court (Calabresi, Livingston & Rakoff (by designation)) rejected two appeals by Mr. Lewis from two denials of two § 3582(c)(2) motions for a reduced sentence based on two retroactively applicable Guideline amendments, one in 2010 and the other in 2014. The case is of interest principally for demonstrating the see-saw application of the Career Offender Guideline vis-a-via the Drug Guideline (§ 2D1.1) in the context of § 3582(c)(2) motions.

Mr. Lewis was originally sentenced in 2004. Under the drug table in § 2D1.1, his total offense level (based on distributing 1.5 KG or more of cocaine base) was 37, and at Criminal History Category VI, the range was 360 months to life. He also qualified as a Career Offender under § 4B1.1, but that determination resulted in a total offense …

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Categories: 3582(c)(2), career offender

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Categories: 3582(c)(2), career offender

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Tuesday, August 30th, 2016

Existence of “Second or Subsequent” § 924(c) Conviction Remains a Mere “Sentencing Factor” after Allyne

In United States v. Boykin, Docket Nos. 14-851-cr & 14-1033-cr, the Court (Walker, Calabresi, Hall) in a per curiam opinion rejected defendant Simmons’s argument that under Allyne v. United States, 133 S. Ct. 2151 (2013), the fact of whether he had a “second or subsequent” conviction under 18 U.S.C. § 924(c) (for using or carrying a firearm during either a crime of violence or a drug trafficking offense), which triggers an enhanced mandatory consecutive sentence of 25 years, must be submitted to and found by a jury. The Court thus re-affirmed United States v. Anglin, 284 F.3d 407 (2d Cir. 2002), which held that the existence of a “second or subsequent” § 924(c) conviction is a mere sentencing factor, falling under the Almendarez-Torres exception (523 U.S. 224 (1998)) to the rule of Apprendi (530 U.S. 466 (2000)), and thus need not be submitted to or found by …

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Categories: 924(c)

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Categories: 924(c)

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Thursday, August 25th, 2016

Court rejects IAC claim because defendant cannot show that he would not have pleaded guilty absent counsel’s mis-advice about guidelines range

Only one summary order from the Circuit today in the criminal realm: In United States v. Jeremy Viles, Docket No. 15-885-cr, the Court (Livingston, Carney, Stanceu), rejected the defendant’s claim that he should be allowed to withdraw his guilty plea based on then-counsel’s allegedly erroneous advice regarding the advisory Guidelines range he would face at sentencing. Under Circuit law, in order to meet Strickland’s prejudice component in this context, the “‘defendant must show that there is a reasonable probability that were it not for counsel’s errors, he would not have pled guilty and would have proceeded to trial.’” Order at 2 (quoting United States v. Arteca, 411 F.3d 315, 320 (2d Cir. 2005)). Viles fails to do so.

Even assuming that counsel erred in telling him that he faced a range of 27 to 33 months (rather than a slightly lower range), Viles cannot show that he …

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Categories: guideline, ineffective assistance of counsel

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Categories: guideline, ineffective assistance of counsel

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Friday, July 8th, 2016

Defendant Not “in Custody” When Questioned During Execution of Search Warrant at Her Home

In United States v. Danielle Faux, Docket No. 15-1282-cr, the Circuit (Jacobs, Hall, Restani), in an opinion by Judge Jacobs, reversed on the Government’s interlocutory appeal the district court’s grant of defendant Faux’s suppression motion, based on the claim that she was “in custody” when law enforcement agents questioned her (without providing Miranda warnings) while executing a search warrant of her home. The ultimate question in such cases — whether, taking into all the circumstances, “a reasonable person would have understood his freedom of action to have been curtailed to a degree associated with formal arrest,” Op. at 12 — is necessarily fact-specific. And while the Court acknowledges that this is a very close case – “[t]he Government stepped right up to the limits of constitutionally permissible conduct and . . . just managed to toe the line” – it ultimately concludes that “the circumstances did not rise to …

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Categories: interlocutory, Miranda, search warrant

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Categories: interlocutory, Miranda, search warrant

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Thursday, July 7th, 2016

Second Circuit Updates – July 7, 2016

Pre-2009 Bank Fraud Convictions Vacated Where Evidence Showed Only that Defendant Intended to Defraud a Non-Federally Insured Mortgage Lender

In United States v. Michael Bouchard, Docket No. 14-4156-cr, the Circuit (Parker, Lynch, Lohier) in an opinion by Judge Lohier vacated on sufficiency grounds three bank-fraud related convictions, based on conduct occurring between 2001 to 2007, because the Government proved only that defendant Bouchard intended to defraud a mortgage lender (BNC Mortgage) that was not a federally insured financial institution. This was the case even though BNC was a wholly owned subsidiary of Lehman Brothers, a federally insured financial institution, since the Government concedes that “there was no evidence that Bouchard specifically intended to defraud Lehman Brothers or was even aware of Lehman Brothers’ role in the transactions involving BNC.” Op. 16. In so concluding based on Circuit precedent holding that “the Government must show that a defendant intended to …

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Categories: bank fraud, plea withdrawal, right to counsel

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Categories: bank fraud, plea withdrawal, right to counsel

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Thursday, June 30th, 2016

When Opinion Testimony Is Proper Lay Testimony

The Circuit issued no relevant published decisions today and only two short summary orders, one of which (marginally) bears wider interest. In United States v. Mobutu Thornhill, Docket No. 15-2147-cr, the Circuit (Jacobs, Calabresi, Raggi) affirmed Thornhill’s conviction, following a jury trial, for being a felon in possession of a firearm. The sole issue discussed in the summary order is Thornhill’s argument (not made below and thus reviewed here for plain error) that the trial court “improperly allowed a lay witness to offer expert testimony concerning the identification of the weapon[,] in violation of Rule 701 of the Federal Rules of Evidence.” Order at 1.

The challenged testimony was by a lay eyewitness who told the jury that “he saw the defendant with what appeared to him to be a ‘[.]22 long rifle target pistol.’” (NB: The Internet informs that this is a target pistol that uses a …

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Categories: Rule 701

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Categories: Rule 701

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Thursday, June 2nd, 2016

Defendant Not Eligible for Second § 3852(c)(2) Reduction when New Amendment Does Not Lower the Sentencing Range Determined by Prior Amendment

In United States v. Leroy Derry, Docket No. 15-1829-cr, which was issued yesterday but amended today, the Circuit (by Judge Parker, joined by Judges Pooler and Livingston) ruled as a matter of statutory interpretation that Derry was ineligible for a second sentence reduction under 18 U.S.C. § 3582(c)(2) because the new 2015 amendment (under which he was seeking the second reduction) did not lower the range determined by a prior Guideline amendment in 2011, under which Derry received a lower sentence (though not to the bottom of the amended range), even if this range was lower than the range employed at the original sentencing in 1999.

Here are the essential facts. Derry was convicted in 1998 of multiple offenses, including drug trafficking (crack), racketeering, and murder. When calculating the applicable sentencing range, the Probation Office determined that there were at least three “groups.” The group including the drug trafficking …

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Categories: 3582(c)(2)

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Categories: 3582(c)(2)

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Thursday, May 5th, 2016

District Court Plainly Erred by Using a Guideline Unsupported by the Facts, Even Where the Parties Stipulated to that Guideline in a Plea Agreement

In United States v. Rendsland, Docket No. 14-3942-cr, a summary order issued today, the Circuit ruled that the district court committed plain error in relying on U.S.S.G. § 2A2.2 (“Aggravated Assault”) to calculate Mr. Rendsland’s Guideline range, rather than § 2A2.4 (“Obstructing or Impeding Officers”), even though the parties had stipulated that this was the applicable Guideline in a plea agreement. (Disclosure: Ed Zas of the Federal Defenders of New York submitted an Amicus brief raising this argument on Mr. Rendsland’s behalf). This was so because nothing in the record showed that Mr. Rendsland committed “aggravated assault,” defined in Application Note 1 of § 2A2.2 as a “felonious assault that involved (A) a dangerous weapon with intent to cause bodily injury (i.e., not merely to frighten) with that weapon; (B) serious bodily injury; (C) strangling, suffocating, or attempting to strangle or suffocate; or (D) an …

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Categories: guideline, sentencing findings

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Categories: guideline, sentencing findings

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Monday, May 2nd, 2016

Conviction May Be Sustained upon the Uncorroborated Testimony of a Single Accomplice

In United States v. Fernandez et al., Docket No. 14-4158-cr (L), a summary order issued today, the Circuit principally reaffirms the longstanding rule that “a conviction can be sustained on the basis of testimony from a single accomplice, so long as the testimony is not incredible on its face and is capable of establishing guilt beyond a reasonable doubt.” Order at 3 (citing United Sates v. Diaz, 176 F.3d 52, 92 (2d Cir. 1999)). Fernandez’s conviction (for conspiring to commit murder-for-hire, and for using a firearm to commit murder in furtherance of that conspiracy) was secured principally on the testimony of his cousin and co-defendant Darge. Testifying pursuant to a cooperation agreement, Darge told the jury that members of the Minaya drug organization hired him to murder two of its drug suppliers (Cuellar and Flores) for $180,000; that he recruited his cousin Fernandez to help him with the …

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Categories: credibility, sufficiency

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Categories: credibility, sufficiency

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Thursday, April 14th, 2016

Second Circuit Updates – April 14, 2016

Defendant Cannot Benefit on Direct Appeal from Guideline Amendment that Became Effective after His Sentencing if Amendment Is Substantive rather than Clarifying (unless the Commission Determines that the Amendment Should Have Retroactive Effect under § 1B1.10)

In United States v. Miguel Jesurum, No. 14-4464-cr (2d Cir. April 14, 2016), the Court (op. by Pooler, joined by Kearse and Sack) rejects appellant’s argument that (1) the sentencing court erred in finding that the offense “involved more than 250 victims,” which led to a 6-level enhancement under the 2014 version of U.S.S.G. § 2B1.1(b)(2)(C); and (2) he should receive the benefit of a 2015 amendment to the same Guideline, which became effective after his sentencing and which now calls for the same enhancement only where the offense “resulted in substantial financial hardship to five or more victims.”

The first argument fails under the plain language of Commentary to the Guideline. Application …

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