Author Archive | Darrell Fields

Wednesday, August 3rd, 2016

An Uphill Battle

United States v. Elvin Hill, No. 14-3872-cr (Circuit Judges: Jacobs, Livingston, and Droney).(Disclosure: This is an appeal that this Office litigated).

In this direct appeal,  Mr.  Hill argued: (1)  that Hobbs Act robbery (18 U.S.C. § 1951) did not “categorically” constitute a “crime of violence” under the “force” clause of 18 U.S.C. § 924(c)(3);  and (2) that Johnson v. United States, 135 S.Ct. 2551 (2015)  applied to the residual clause of  § 924(c)(3), which is worded similarly to that of the ACCA statute — 18 U.S.C.. § 924(e)(2)(B) — and that Johnson rendered 924(c)(3)’s residual void for vagueness. Both claims were rejected by the Circuit.

The Cateqorical approach: The Circuit stated that it was applying the “categorical approach” in determining whether the predicate crime (the Hobbs Act robbery) was a “crime of violence” under §924(c).  The categorical approach looks only to the statutory definition of the predicate …


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

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More to Follow

Johnson (Bad) News:

Today, the Circuit  decided  Hill adverse to the defendant. It holds that Hobbs Act Robbery is “categorically” a “Crime of Violence” under 18 U.S.C.§ 924(c)(3).  It also holds that Johnson does not apply to § 924(c): i.e., it does not  “effectively render[]  the ‘risk-of-force clause’” of § 924(c) “void for vagueness.” United States v. Elvin Hill, No. 14-3872-cr (Jacobs, Livingston, and Droney).

We are still digesting the Opinion. More will follow.  But defense counsel will still have to raise and litigate these claims until the Supreme Court decides the issue. The Government already has a cert petition pending with the Supreme Court  based on defendant wins in the Ninth Circuit and two other circuits. This Second Circuit case clearly creates a split that the Supreme Court will most likely take on.…


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

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Friday, July 29th, 2016

Petition to file a Second or Successive 2255 petition is granted by the Circuit –in a Career Offender case based on Johnson and the cert. grant in Beckles — and the district court has discretion to proceed without waiting for the Beckles decision.

Today the Circuit amended its decision in Blow v. United States, No. 16-1530 (Katzmann, chief judge; Wesley and Hall, circuit judges). It added a single line at the end of the opinion to say that the district judge has discretion to proceed on Blow’s  2255 petition and  is not required to hold the petition in abeyance until the Supreme Court decides  Beckles v. United States, No. 15-8544, 2016 WL 1029080 (U.S. June 27, 2016).

The Circuit’s initial opinion was filed about two weeks ago, on July 14, 2016. It granted Blow’s motion to file a Second or Successive 2255 petition. But it  “instructed” the district court to “hold Blow’s §2255 motion in abeyance pending the outcome of Beckles.

In Beckles,  the Supreme Court granted certiorari to decide whether Johnson v. United States, 135 S.Ct. 2551 (2015)  — which declared that the “residual clause” of the …


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Categories: 2255, career offender, Johnson, Uncategorized

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Wednesday, June 29th, 2016

Second Circuit Updates – June 29, 2016

Today there is a short opinion discussing the meaning of “aggravated felony” in the context of a removal proceeding. And there is a summary order in a criminal case.

In Weiland v. Lynch, No. 14-3631-ag (Circuit Judges:  Parker, Lohier, and Carney), the Circuit rejects the petitioner’s argument, in his fight against removal to Germany, that his conviction for possession of child pornography under the New York Penal Law (§263.11) did not qualify as an aggravated felony under the Immigration and Nationality Act (“INA”). His argument was that the New York offense was not an offense “described in” the analogous federal crime because the New York offense lacks an interstate commerce element that is present in the analogous federal child pornography statute. See 8 U.S.C. § 1101(a)(43) (defining aggravated felony as an offense “described in” certain federal laws).  The Circuit relied on this years’ Supreme Court decision in Torres v.


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Categories: aggravated felony, statutory construction

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Friday, June 3rd, 2016

Second Circuit Updates – June 3, 2016

No criminal cases were decided by the Circuit today.

But there is an interesting civil case resulting from the plaintiff’s arrest by NYPD detectives,  on charges that were later dismissed. The plaintiff brought a civil suit against the defendants — several named NYPD detectives — under 42 U.S.C.§ 1983 .

The case is Figueroa v. Mazza et al.,  No. 14-4116-cv  (2d Cir. June 3, 2016)  (Circuit Judges: Kearse, Walker, and Cabranes; Judge Kearse dissents from part of the opinion).

In the plaintiff’s civil suit under 42 U.S.C.§ 1983  and state law, he raised the following claims against the detectives: (1) false arrest, (2) excessive force, (3) assault, (4) failure to intervene (because the detectives did not stop an unidentified police officer from beating him as he sat in a  police car), and (5) unlawful entry.

Of interest is Circuit’s discussion of the unlawful entry claim because it involves a …

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Thursday, May 19th, 2016

District court’s decision denying a motion for a sentence reduction under 18 U.S.C.§ 3582(c)(2) is vacated — explanation was insufficient to permit meaningful appellate review

United States v. Mazza, No.15-2394-cr  (2d Cir. May 19, 2016)
(summary order) (Jacobs, Parker, and Raggi).

Congratulations to the Federal Defenders in New Haven for obtaining a vacatur and remand of a district judge’s refusal to grant a defendant’s motion for a reduction of sentence under 18 U.S.C.  § 3582(c)(2).  In this summary order, the Circuit concluded that the district judge’s explanation for the summary denial of the motion was not sufficient for meaningful appellate  review, even under an abuse- of-discretion standard.

Mazza  had been convicted and sentenced in 2011 for a marijuana conspiracy:  for conspiring to manufacture and possess with intent to distribute over 1000 marijuana plants. The district court sentenced Mazza to 168 months in prison, which was the top of the Sentencing Guidelines range (of 135-168 months) as calculated at the 2011 sentencing.

But under a subsequent retroactive amendment to the Guidelines  — Amendment 782,  reducing …

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Categories: 3582(c)(2)

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Categories: 3582(c)(2)

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Friday, May 13th, 2016

NEW RULES OF THE ROAD FOR CJA COUNSEL ABOUT INFORMING CLIENTS OF THEIR RIGHT TO SEEK REHEARING AND REHEARING EN BANC

 Today’s published decision,  JAVEL TAYLOR  v. UNITED  STATES No. 15-827  (Opinion of May 13, 2016)(Katzmann, Chief Judge, Cabranes, Circuit Judge, and Kaplan, District Judge), is addressed to how appointed appellate counsel should advise clients about  seeking rehearing and rehearing en banc from an adverse decision in their case.  Addressing  an issue of first impression for this Circuit, the Court holds that,  under the Criminal Justice Act (“CJA”), 18 U.S.C. §3006A,  indigent defendants have the right to the assistance of counsel in filing petitions for rehearing and for rehearing en banc with the Circuit.  And this right triggers a set of obligations for CJA counsel on appeal.

The case arises from a pro se  petition, under 28 U.S.C.§2255, where Javel Taylor alleged that he did not learn of the Circuit’s decision affirming his conviction and (84-month) sentence, until one month after the decision, and was thereby denied …

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Friday, April 15th, 2016

Second Circuit Updates – April 15, 2016

No published opinions today, only two summary orders: a direct appeal and a collateral (§2255) challenge.

UNITED STATES v. JAMES PASS, No. 15-1446-CR (Summary Order of April 15,  2016)(Kearse, Cabranes, and Chin).  This summary affirmance is interesting for the Circuit’s  criticisms of how the  judge conducted this sentencing in the E.D.N.Y.

Defendant Pass claims three categories of errors occurred at his E.D.N.Y. sentencing.  He claims the district court  (1) committed several procedural errors; (2) erroneously allowed him to proceed pro se; and (3) abused its discretion in refusing to adjourn the sentencing. Although the Circuit affirmed the top-of-the-range 71-month sentence (for a felon-in-possession conviction),  it expressed concern about the judge’s handling of the sentencing.

  1. Procedural reasonableness of the sentencing.  The defendant claims that the judge failed a) to calculate the Guidelines range; b) to rule on objections to the presentence report;  c) to consider the statutory sentencing
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Tuesday, April 5th, 2016

Second Circuit Updates – April 5, 2016

There were no opinions in criminal cases from the Circuit this day.  The Circuit issued a single summary affirmance in United States v. Miller, No.15-108-cr, where it rejected the defendant’s claim that his 144-month – but nevertheless below-Guidelines – sentence was substantively unreasonable.

United States v. Miller, No.15-108-cr:

Miller was convicted of a  drug distribution conspiracy ( 21 U.S.C. § 846)  involving a (b)(1)A)-quantity of drugs — i.e., 21 U.S.C. § 841.  The drugs were more than 1,000 kilograms of marijuana.  He committed the offense “while on supervised release from a prior conviction for cocaine trafficking and firearms possession.”  His sole contention on appeal, according to the Circuit, was that his 144-month prison sentence, which was a downward variance from a Guidelines range of 151 to 188 months, “was substantively unreasonable the because the only reasonable sentence is one at the statutory minimum of 120 months’ …

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Categories: guideline, marijuana

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Categories: guideline, marijuana

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Monday, March 7th, 2016

Sentence Imposing Imprisonment is Final Even if the Amount of Restitution is Undetermined; Pro Se Litigant’s Third 2255 Motion Deemed Successive Petition

The Second Circuit issued two opinions today.

UNITED STATES v. TULSIRAM, No. 14-2483 (2d Cir. March 7, 2016)(Cabranes, Parker, and Lynch).

The Circuit addresses two issues in this case: the first concerns its jurisdiction to review a judgment of conviction that imposes a sentence of imprisonment and restitution but leaves the restitution undetermined; the second, whether the district court’s failure to advise the defendant about mandatory restitution, during the plea allocution, is plain error warranting vacutur of the defendant’s guilty plea.

The Circuit holds (1) that a judgment of conviction imposing both a sentence of imprisonment and restitution, but that leaves the amount of restitution for a later determination — and one that here, never happens — is nevertheless “final” under 28 U.S.C. § 1291, and the Circuit therefore has jurisdiction to review the judgment; and (2) that a district court’s failure to advise the defendant of mandatory restitution …

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Categories: Rule 11, Uncategorized

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