Author Archive | Yuanchung Lee

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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United States v. Amerson, Docket No. 05-1423-cr (2d Cir. Mar. 29, 2007) (Calabresi, Katzmann, B.D. Parker, C.JJ.): In this case, the Court upholds, against a Fourth Amendment challenge, the federal program of DNA testing, to which prisoners, those on supervised release, and probationers are subject, as applied to probationers convicted of non-violent crimes. On its face, such a program faces a Fourth Amendment obstacle, since it constitutes a search without any suspicion of wrongdoing, much less probable cause, a search that is ordinarily unreasonable. The Court follows its previous decisions in Roe v. Marcotte, 193 F.3d 72, and Nicholas v. Goord, 430 F.3d 652, in holding that the proper Fourth Amendment test to apply to such a case is the “special needs” test rather than a “reasonableness” test evaluated on the totality of the circumstances. That test, as applied by the Supreme Court, has required …

United States v. Elmore, Docket No. 05-1734-cr(L) (2d Cir. Mar. 29, 2007) (Pooler, Raggi, Sand): This case makes me want to practice in the District of Connecticut. Here, the district court ruled that a Terry stop of the defendant’s vehicle (resulting in the subsequent recovery of a firearm) was not supported by reasonable suspicion because the informant who supplied the tip leading to the stop of the car was (1) “anonymous” and (2) had not given sufficient “predictive information” to justify the stop under cases such as Florida v. J.L., 529 U.S. 266 (2000). The district court categorized the informant as anonymous even though she called a police detective and gave him (1) her full name (“Dorothy Mazza”) (2) cell phone number, and (3) home phone. Op. 3. But while the detective was able to call the informant back on the cell phone number she provided (thus …

United States v. Kaba, Docket No. 05-3813-cr (2d Cir. Mar. 8, 2007) (Walker, Sack, Wesley): In this case, the government urged, in support of the proposed sentence, that the defendant came from a tightly-knit West African community, and that a stiff sentence would deter her countrymen here and elsewhere in the world from engaging in drug crimes. The district court essentially adopted this rationale for its sentence. It noted initially, and sensibly, that general deterrence was rarely a big factor in setting a sentence, but went on to adopt the government’s notion that in this case, because of the defendant’s origins, its sentence would serve to deter those of her nationality. The defendant appealed, arguing that it was impermissible to base her sentence on her national origin, and the Circuit agreed.

The Circuit found the case indistinguishable from United States v. Leung, 40 F.3d 577 (2d Cir. …

United States v. Reich, Docket No. 06-1445-cr (2d Cir. Mar. 2, 2007) (Kearse, Sotomayor, Koeltl): This opinion principally holds that 18 U.S.C. § 505, which makes it a crime to “forge[] the signature of any judge … of any court of the United States … or forge[] or counterfeit[] the seal of any such court . . . ” does not require proof of an intent to defraud. This holding aligns the Second Circuit with the Tenth, see United States v. Cowan, 116 F.3d 1360 (10th Cir. 1997), and against the Sixth, see Levinson v. United States, 47 F.2d 470 (6th Cir. 1931). The Circuit’s lengthy exegesis of why this is so, see Op. 13-18, is interesting for those who care about this issue.

The opinion also unsurprisingly holds, though technically as a matter of first impression in this Circuit, that the particular version of the …

United States v. Stearns, Docket No. 05-2550-cr (2d Cir. Mar. 2, 2007) (Calabresi, Parker, Hall) (per curiam): This short opinion principally confirms, as a general matter, that appellate waivers must be narrowly construed (and in the defendant’s favor) and, more specifically, that a standard appellate waiver (wherein the defendant “waives the right to appeal … any sentence imposed by the Court which is the same as or less than” a specific number of months or years) does not bar an appellate challenge to the district court’s decision to run the federal sentence only partially concurrent to an undischarged state sentence. Op. 4-5. The Circuit had previously held the same in United States v. Williams, 260 F.3d 160, 164-65 (2d Cir. 2001), and United States v. Brown, 232 F.3d 44, 48 (2d Cir. 2000).

Moreover, for purposes of determining the scope of the appellate waiver, it did …

United States v. Capanelli, Docket No. 05-3056-cr (2d Cir. Mar. 1, 2007) (Jacobs, Sack, Oberdorfer) (per curiam): This opinion follows the Rattoballi line of cases, which emphasize the continuing centrality of the Guidelines in sentencing despite Booker. The panel rejects Capanelli’s claim that his sentence must be vacated as procedurally unreasonable because the district court “gave complete deference to the guidelines” at sentencing. Op. 4. Among other things, the district judge, while repeating the “of course the Guidelines are now advisory” mantra, stated that the Guidelines should be “given significant and substantial deference” at sentencing.

No problem!, this panel says, because the Guidelines range “‘should serve as a ‘benchmark or a point of reference or departure’ for a sentencing court,” (emphasis in original) and because

“A sentencing judge’s decision to place special weight on the recommended guideline range will often be appropriate, because the Sentencing …

United States v. Dayan, Docket Nos. 05-3443-cr (L), 05-4199-cr (CON) (2d Cir. Feb. 5, 2007) (Kearse, Winter, Walker): This short opinion rejects Dayan’s claim that his indictment, charging him with conspiracy to commit bank fraud and several substantive counts of bank fraud, was defective because it failed to state that his frauds were “material,” an element of the offense. In Neder v. United States, 527 U.S. 1, 25 (1999), the Supreme Court ruled that although the bank fraud statute, 18 U.S.C. § 1344, does not contain the word “material,” materiality was nonetheless an element of the offense “because the word fraud incorporated fraud’s ‘well-settled meaning at common law’ — a ‘misrepresentation or concealment of material fact.'” Op. 5 (quoting Neder) (emphasis in original). Using the same reasoning, the Circuit rejects Dayan’s claim: “If materiality can be inferred to be an element of criminal fraud because of …