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Author Archive | Colleen Cassidy

Friday, August 16th, 2019

Second Circuit Remands For Resentencing Because of Uncertainty About Whether the Judge Understood That he Could Consider the Severity of Mandatory Consecutive Minimum Sentences In Sentencing for the Predicate Offenses.

In United States v. Brown, No. 18-834 (2d Cir. Aug. 16, 2019), the Court of Appeals reversed a 39-year sentence and remanded for resentencing because it was uncertain whether the judge understood his discretion, after the Supreme Court’s decision Dean v. United States, 137 S.Ct. 1170 (2017), to consider the severity of the mandatory consecutive minimum sentences required by §924© in determining the sentence for the predicate offenses. The case involved two robberies and two §924(c)brandishing counts, which, before the First Step Act, required 7 years for the first and 25 years for the second §924(c)count. Defense counsel had asked for one day on the predicate robberies because the mandatory consecutive sentences were so severe. Before Dean, the Second Circuit’s decision in United States v. Chavez, 549 F.3d 119 (2d Cir. 2017)had precluded such consideration. Neither case was mentioned below but the court imposed 84 months …

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Categories: 924(c), First Step Act, sentencing

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Categories: 924(c), First Step Act, sentencing

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Thursday, August 15th, 2019

Circuit Upholds, On Good Faith Grounds, A Search Warrant Issued By An Out-of-District Magistrate In Violation of Former Rule 41(b)and 28 U.S.C. §636(a).

United States v. Eldred, No. 17-3367-cr (August 9, 2019) involved a Network Investigative Technique warrant, essentially a government hacking tool that penetrates an anonymous “dark” web site to gain identifying data from computers communicating with the site. The warrant was issued by a magistrate judge in Virginia, but was used to obtain the IP address of a computer in Vermont, which agents subsequently seized. Eldred argued that the warrant was void because it violated the since-amended Federal Rule of Criminal Procedure 41(b) (limiting the authority of a magistrate-judge to issue warrants to persons and property within her district) and 28 U.S.C. 636(a)(limiting the jurisdiction of magistrates to the district in which they sit).

Rule 41 (b) was amended in 2016 to specifically allow this type of warrant. However, the Court acknowledged that the old Rule applied here and that Section 636(a) arguably provided independent statutory ground for suppression in …

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Categories: Fourth Amendment, good faith, Warrants

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Categories: Fourth Amendment, good faith, Warrants

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Monday, July 8th, 2019

The Supreme Court Vacates Barrett

The Second Circuit’s decision in United States v. Barrett, 903 F.3d 166 ( 2d Cir. 2018), was vacated by the Supreme Court in a GVR order on June 28, 2019, in light of United States v. Davis, 588 U.S. __, 2019 WL 2649797. Davis held, contrary to Barrett, that the residual clause of 924(c)(3)(B) is void for vagueness. See Blog Post dated June 26, 2019.

In light of the Supreme Court’s order in Barrett, the government has acknowledged that Hobbs Act conspiracy no longer qualifies as a crime of violence under §924(c) because it does not qualify under the “force” or “elements” clause. So §924(c) convictions based on a Hobbs Act conspiracy as the predicate “crime of violence” are invalid. Unfortunately, the Second Circuit held that substantive Hobbs Act robbery  qualifies under the force clause, in United States v. Hill, 890 F.3d 51(2018).  …

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Categories: 924(c), crime of violence, Hobbs Act

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Categories: 924(c), crime of violence, Hobbs Act

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Tuesday, March 7th, 2017

The Supreme Court Holds that the Advisory Guideline Are not Subject to Vagueness Challenges

In Beckles v. United States, 580 U.S. ___, 2017 WL 855781 (March 6, 2017) the Supreme Court held that Johnson v. United States, 576 U.S. 2551, 135 S.Ct. ___ (2015), does not apply to the Guidelines’ residual clause because “the advisory Guidelines are not subject to vagueness challenges under the Due Process clause.” Slip op. at 1. In an opinion by Justice Thomas, the Court’s reasoning was based on the advisory nature of the Guidelines since United States v. Booker, 543 U.S. 220 (2005). Slip op. at 7. Because the now advisory guidelines “merely guide the district court’s discretion,” they do not implicate the vagueness doctrine’s concerns with notice and arbitrary enforcement. Slip op. at 7-9. Justice Thomas noted that the decision did “not render the advisory Guidelines immune from constitutional scrutiny,” only void-for-vagueness scrutiny; they are still subject to ex post facto rules and Eighth Amendment …

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Categories: career offender, guideline, Johnson, vagueness

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Categories: career offender, guideline, Johnson, vagueness

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Thursday, December 1st, 2016

The Unusual Nature of the Guidelines’ Fraud Loss Enhancements Is a Ground for Downward Variance

In an opinion written by Judge Newman, the Second Circuit today vacated the defendants’ sentences of 30 and 21 months, respectively, for food stamp fraud for the district court to consider imposing non-guideline sentences on the ground that the defendants’ Guidelines ranges were significantly increased by the loss enhancements, an unusual feature of the Guideline scheme. United States v. Algahaim, No. 15-2024(L)(2d Cir. Dec. 1 2016). The sentences here were “driven by the loss amount,” which increased the offense level from a 6-month base to levels 18 and 16 respectively. Slip op. at 9. The Court held: “Where the Commission has assigned a rather low base offense level to a crime and then increased it significantly by a loss enhancement, that combination of circumstances entitles a sentencing judge to consider a non-Guidelines sentence.” Id. at 11.

The Court acknowledged that the Commission had the authority to use loss amount …

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Categories: guideline, loss calculation, Uncategorized

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Categories: guideline, loss calculation, Uncategorized

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Thursday, September 29th, 2016

Second Circuit Updates – September 29, 2016

Supreme Court to Decide Whether Johnson Applies to 18 U.S.C. 924(c)

The Supreme Court granted certiorari today in Lynch v. Dimaya, 15-1498, 2016 WL 3232911 (U.S., Sep. 29, 2016). The issue is whether the residual clause in 18 U.S.C. § 16(b), which has the same wording as the residual clause in 18 U.S.C. § 924(c), is void for vagueness under Johnson v. United States, 135 S. Ct. 2551 (2015). The Ninth Circuit held in Dimaya that Johnson applies to the residual clause in section 924(c) and there is a split in the Circuits. In light of certiorari grant, district judges should be urged not to deny Johnson claims involving section 924(c) convictions based on the Second Circuit’s decision in United States v. Hill, __ F.3d __, 2016 WL 4120667 (2d Cir. Aug.3, 2016). Courts should instead await the decision in Dimaya and resolution of the Hill rehearing …

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Categories: 924(c), ineffective assistance of counsel, Johnson

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Friday, July 15th, 2016

Second Circuit Updates – July 15, 2016

The Record of the Psychiatric Evaluation of a Rape Complainant was Material Under Brady and State Court’s Ruling to the Contrary was Unreasonable Application of the Kyles standard.

(Full disclosure: Colleen Cassidy, today’s blogger, briefed and argued this case)

In Fuentes v. Griffin, Docket NO. 14 – 3878, the Second Circuit (KEARSE, J.), held that the state prosecutor’s suppression of the rape complainant’s psychiatric evaluation (the “Record”) violated Brady v. Maryland, 373 U.S. 83 (1963), and that the state court unreasonably applied the materiality standard of Kyles v. Whitley, 514 U.S. 419 (1995), in rejecting that claim. The state trial was a closely contested rape case with a consent defense, in which a sexual encounter on the roof of the complainant’s building was undisputed and the only issue was whether it was rape or consensual. The only witnesses to the encounter were the complainant and the defendant-petitioner …

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Categories: Brady, Kyles, sex offenses

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Categories: Brady, Kyles, sex offenses

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Friday, May 6th, 2016

Summary Order Reaffirms Second Circuit Rule that Youthful Offender Adjudications Can Count as Crimes of Violence under the Guidelines even after Sellars

There is only one summary order today, United States v. Oscar Cardoza, 15-1602-cr. The Second Circuit reaffirmed its rule that a New York youthful offender adjudication counts as a crime of violence under USSG 2L1.2(b)(1)(A)(ii), if the nature of the proceedings, the sentence received, and the actual time served shows that the state treated the conviction as an adult conviction. See United States v. Pereira, 465 F.3d 515, 520-22 (2d Cir. 2006); United States v. Reinoso, 350 F.3d 51, 54 (2d Cir. 2003). The Court distinguished its holding in United States v. Sellars, 784 876 (2d Cir. 2015) that a youthful offender conviction does not qualify as a violent felony under ACCA on the ground that ACCA explicitly excludes convictions that are deemed “set aside” under state law, while there is no such provision in the guideline.…

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Categories: crime of violence, youthful offender adjudication

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Categories: crime of violence, youthful offender adjudication

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Thursday, March 24th, 2016

Summary Order on “Automobile Frisk” and the Prejudice Prong of Ineffective Assistance of Counsel

United States Jonathan Bulluck, No. 13-255-cr (Summary order of March 24, 2016 (Leval, Calabresi, Lynch):

The Court did not a issue a published opinion today. Its one summary order affirmed the denial of an ineffectiveness claim for lack of prejudice, on the ground that the search of a bag (which contained drugs)in a car stop would have been upheld as a valid “automobile frisk.”

This was the second appeal to the same panel, after a prior summary order concluded that counsel’s performance was deficient in failing to argue that the defendant, a cab passenger, had a reasonable expectation of privacy in the plastic bags in the back of the cab. United States v. Bullock, 556 Fed. Appx. 18 (2d Cir. 2014)(Bullock I). The suppression motion had originally been denied on the ground that the passenger had no expectation of privacy in the back of the cab in general, …

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