Author Archive | Daniel Habib

Friday, January 10th, 2020

EDNY: Attempted Hobbs Act Robbery Is Not A § 924(c) Crime of Violence.

In United States v. Tucker, 2020 WL 93951 (E.D.N.Y. Jan. 8, 2020), the district court (Johnson, J.), held that attempted Hobbs Act robbery is not a crime of violence under 18 U.S.C. § 924(c), and granted defendant’s pretrial motion to dismiss a § 924(c) count predicated on that offense.

Tucker reasons as follows: An attempt requires only a substantial step toward completing the object crime, and for Hobbs Act robbery, “the Second Circuit has found ‘reconnoitering the place contemplated for the commission of the crime’ or possession of ‘paraphernalia to be employed in the commission of the crime’ to be sufficient to constitute a ‘substantial step.’” Tucker, 2020 WL 93951, at *5 (quoting United States v. Jackson, 560 F.2d 112, 120 (2d Cir. 1977)). Such conduct is not necessarily forceful or violent:

“[A] person may engage in an overt act—in the case of robbery, for example, … …


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

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Thursday, January 9th, 2020

Circuit Vacates Sentence Based on District Court’s Misunderstanding of Authority to Impose Anticipatory Concurrent Sentence; Declines to Enforce Appeal Waiver Where Government Consents to Partial Remand.

In United States v. Anderson, ___ F.3d ___, No. 18-1839 (2d Cir. Jan. 9, 2020) (Jacobs, Sack, Hall), the Circuit vacated and remanded a 120-month sentence based on two errors: (1) the district court misunderstood its authority to order that the federal sentence run concurrently with a yet-to-be-imposed state parole violation sentence; and (2) the district court misunderstood its authority to reduce the federal sentence below the mandatory minimum to account for time already served on an undischarged state sentence for relevant conduct. In doing so, the Circuit declined to enforce the appeal waiver in the defendant’s plea agreement, based in part on the government’s consent to a partial remand.

This decision arises from one of the most confusing areas of federal sentencing: the interaction of federal and state sentences for related conduct. While on parole for a Pennsylvania state drug conviction, defendant was arrested and charged …

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Categories: mandatory minimum, sentence

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Categories: mandatory minimum, sentence

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Tuesday, June 25th, 2019

SDNY: Judge Castel Rules That 21 U.S.C. 846 Is Not A “Controlled Substance Offense” Under The Guidelines

Monday, in United States v. Sprull, 18 Cr. 665, Judge Castel ruled that a prior conviction under 21 U.S.C. 846 is not a controlled substance offense under U.S.S.G. 4B1.2(b). Judge Castel agreed with Judge Oetken’s analysis in United States v. Wilson, 18 Cr. 12, and ruled that under the categorical approach, 846 has no overt act requirement, whereas the generic offense of “conspiring” under Application Note 1 to 4B1.2(b) does. As a result, 846 is a categorical mismatch for the Guidelines predicate. We have requested the transcript and will circulate it. We also have briefing on this issue for anyone who’s interested.

The question is currently pending before the Second Circuit in United States v. Tabb, No. 18-338 (briefing complete; oral argument not scheduled yet).…

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Categories: career offender

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Categories: career offender

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Monday, June 17th, 2019

En banc Sixth Circuit Holds That Guidelines “Controlled Substance Offenses” Do Not Include Attempts

In United States v. Havis, the en banc Sixth Circuit held, unanimously, that a Tennessee state offense criminalizing the attempted delivery of a controlled substance was not a “controlled substance offense,” for purposes of U.S.S.G. §§ 2K2.1 and 4B1.2. ___ F.3d ___, 2019 WL 2376070 (6th Cir. June 6, 2019) (en banc). Overruling prior Circuit precedent, the Court explained that attempts appear only in Application Note 1 to § 4B1.2(b), not in the text of the Guideline itself. Consequently, the inclusion of attempts was not an interpretation of § 4B1.2(b)’s text, to which deference would be owed under Stinson v. United States, 508 U.S. 36 (1993), but rather an addition to § 4B1.2(b)’s text, due no deference at all:

To make attempt crimes a part of § 4B1.2(b), the Commission did not interpret a term in the guideline itself—no term in § 4B1.2(b) would bear that …

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Categories: Uncategorized

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Wednesday, June 15th, 2016

Circuit Affirms Life Sentence for Leader of Violent Drug Trafficking Organization

There were no published opinions today.

In an unpublished opinion, United States v. Fernandini, No. 14-2203, the Second Circuit affirmed a within-Guidelines life sentence for the leader of a violent drug trafficking organization over procedural and substantive reasonableness challenges.

Fernandini pleaded guilty to (i) conspiracy to traffic narcotics; (ii) using a firearm to commit murder in furtherance of the conspiracy, 18 U.S.C. § 924(j)(1); and (iii) discharging the firearm in furtherance of the conspiracy, § 924(c)(1)(A)(iii). In affirming, the Circuit noted that “Fernandini was the leader of a notorious and ruthless gang for nearly a decade.  As gang leader, he significantly increased the quantity of narcotics the organization imported and enforced the organization’s territory with violence, including killing or ordering the killing of rival gang members.”

On the government’s consent, however, the Circuit vacated the § 924(c)(1)(A)(iii) discharging count, as it was a lesser included offense of the § …

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Categories: 924(c), guideline, life

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Categories: 924(c), guideline, life

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Wednesday, May 4th, 2016

Second Circuit: Conviction for Investment Adviser Fraud Requires Only Intent To Deceive, Not Intent To Harm

In United States v. Tagliaferri, No. 15–536, the Second Circuit held that a conviction for investment adviser fraud, under section 206 of the Investment Advisers Act of 1940, 15 U.S.C. § 80b–6 and 80b–17, requires only intent to deceive one’s clients, not intent to harm them as well.

Tagliaferri ran a boutique investment advisory firm where, the government alleged, he engaged in various deceptive practices, including taking kickbacks for investing client funds with particular entities, cross-trading between client accounts, and falsely characterizing investments as loans. The government charged Tagliaferri with, among other offenses, investment adviser fraud under section 206. At trial, Tagliaferri’s defense was that, despite his deceptive practices, he “always believed that he would be able to work things out so that his clients would not be harmed.” Accordingly, he sought a jury instruction that investment adviser fraud requires not only intent to deceive one’s clients, but …

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Categories: fraud, intent, Uncategorized

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Categories: fraud, intent, Uncategorized

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Monday, April 11th, 2016

EDNY: Dearie Reduces JLWOP Sentence to 35 Years

In 1989, when he was 16 years old, Alex Wong, a teen runaway who had been recruited by a violent street gang, committed a murder during an extortion gone awry.  He was convicted of RICO conspiracy and sentenced to life under the mandatory Guidelines. On Friday, in light of the Supreme Court’s decisions in Miller v. Alabama, 132 S. Ct. 2455 (2012) (holding that the Eighth Amendment prohibits a mandatory LWOP sentence for a juvenile), and Montgomery v. Louisiana, 136 S. Ct. 718 (2016) (holding that Miller applies retroactively), Judge Dearie vacated the life sentence and resentenced Wong to 35 years. Citing developments in neuroscience regarding juvenile brain development, Judge Dearie told Wong: “It does give us hope that perhaps you did not fully understand and assess the full range of consequences.”

***

No published opinions from the Circuit.

In a summary order (United States v.

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Categories: Eighth Amendment

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Categories: Eighth Amendment

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Monday, April 4th, 2016

Supreme Court: Sex Offender Who Leaves U.S. For Foreign Country Not Required To Update His Registration In U.S. (UPDATE)

If you move from Kansas to the Philippines, do you still “reside” in Kansas? Seems simple, right? The Supreme Court thought so, too.

In Nichols v. United States, No. 15–5238, the Court said no, in a unanimous, eight-page opinion issued just a month after oral argument.

Lester Nichols was convicted of a sex offense and required to register under SORNA. He lived (and registered) in Kansas for about a year, before he “disconnected all of his telephone lines, deposited his apartment keys in his landlord’s drop-box, and boarded a flight to Manila.” Slip op., at 3. Nicholas was arrested in the Philippines a month later and charged with failing to update his registration in Kansas, in violation of 18 U.S.C. § 2250(a).

Nichols moved to dismiss the indictment, arguing that he was not required to update his registration in Kansas because he no longer “resided” there. The district …

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Categories: sex offenses

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Supreme Court: Sex Offender Who Leaves U.S. For Foreign Country Not Required To Update His Registration In U.S.

There were no Circuit opinions or summary orders today.

The Supreme Court decided Nichols v. United States, No. 15–5238. A unanimous Court, per Justice Alito, held that a sex offender residing in Kansas who moved to the Philippines could not be prosecuted under SORNA for failing to update his registration in Kansas after the move.

In Woods v. Etherton, No. 15–723, the Court summarily reversed the Sixth Circuit’s grant of habeas relief on an ineffective assistance of counsel claim.

And the Court granted certiorari in Pena-Rodriguez v. Colorado, No. 15–606, where the question presented is: “Whether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.”

I’ll be back with a more detailed recap later today.…


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Categories: sex offenses, Sixth Amendment

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Wednesday, March 2nd, 2016

A Rare Sufficiency Win, On Transaction Structuring Counts

United States v. Taylor, No. 14-360-cr (March 2, 2016) (Droney, with by Pooler and Lohier)

The Circuit affirmed a cocaine conspiracy conviction over a constructive amendment claim, but vacated a conviction for transaction structuring on sufficiency grounds, holding that no rational juror could have found the requisite intent to evade currency reporting requirements just from the handful of suspicious transactions introduced at trial.

Taylor, a leader of the Buffalo chapter of the Afro Dogs Motorcycle Club, was charged with a conspiracy involving 5+ kilograms of cocaine — 21 U.S.C. § 841(b)(1)(A) quantity — and several counts of transaction structuring. The jury found him guilty of conspiracy, but indicated on the special verdict form that the conspiracy involved only 500+ grams of cocaine — 21 U.S.C. § 841(b)(1)(B) quantity.  On appeal, Taylor argued that “this conviction, based on an amount of cocaine less than that charged in the indictment, constituted …

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Categories: sufficiency

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Categories: sufficiency

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