Author Archive | Edward S. Zas

In United States v. Delvalle, No. 22-1539-cr (2d Cir. Mar. 5, 2024) (per curiam), the Court reiterated its longstanding rule that a guilty plea is not rendered involuntary or unintelligent simply because the defendant expected to receive a lower sentence than he ultimately received.

Delvalle pleaded guilty to a drug conspiracy. The parties estimated that his Guidelines range was 360-480 months, with a statutory minimum term of 60 months. During the plea colloquy, the defendant acknowledged that he had not been “promised” a below-Guidelines sentence, but nevertheless thought it was a “big maybe.” He was disappointed at sentencing when the judge imposed 420 months of imprisonment.

On appeal, he argued that his plea was involuntary because he believed that he would receive a below-Guidelines sentence, and that this belief influenced his decision to plead guilty. The Circuit rejected this argument, “reiterat[ing] the well settled rule that a defendant’s guilty plea …

In Watts v. United States, Nos. 21-2925(L), 21-3028 (2d Cir. Apr. 12, 2023) (summary order), the Circuit affirmed the defendant’s convictions for various counts involving securities fraud, wire fraud, and money laundering. But, at the Government’s urging on its cross-appeal, the court vacated his sentence—which included a below-Guidelines term of imprisonment of one year and one day—as substantively unreasonable because it was  “shockingly low, or otherwise unsupportable as a matter of law.” Fortunately, the decision is an unpublished summary order, meaning that it has no precedential effect.

Watts was convicted in the Eastern District of New York (Seybert, J.), of charges that, over a four-year period, he and his co-defendants schemed to defraud investors in several publicly traded companies by artificially controlling the price and volume of traded shares in those companies. In brief, Watts and other insiders at public companies allegedly hired a Long Island “boiler room” to …

The Supreme Court recently granted certiorari in four criminal cases to resolve the following questions. Note that in two of the cases, Lora and Samia, the Court will review decisions issued by the Second Circuit.

Lora v. United States, 22-49

Whether 18 U.S.C. § 924(c)(1)(D)(ii), which provides that “no term of imprisonment imposed … under this subsection shall run concurrently with any other term of imprisonment,” is triggered when a defendant is convicted and sentenced under 18 U.S.C. § 924(j).

United States v. Hansen, 22-179

Whether the federal criminal prohibition against encouraging or inducing unlawful immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), is facially unconstitutional on First Amendment overbreadth grounds.

Samia v. United States, 22-196

Whether admitting a codefendant’s redacted out-of-court confession that immediately inculpates a defendant based on the surrounding context violates the defendant’s rights …

In United States v. Peña, No. 20-4192 (2d Cir. Dec. 13, 2022), the Circuit ruled that the District Court did not abuse its discretion when it declined to resentence the defendant de novo following the vacatur of two firearms convictions.

Peña was convicted in 2013 of three counts charging him with conspiring to commit, and committing, murder for hire, in violation of 18 U.S.C. § 1958. He was also convicted of two counts of using a firearm to commit murder, in violation of 18 U.S.C. § 924(j). The District Court sentenced him to five concurrent terms of life imprisonment.

Peña later filed a 28 U.S.C. § 2255 motion alleging that his two § 924(j) convictions were invalid. The District Court agreed and vacated those convictions. But the court refused to resentence Peña de novo on the remaining murder-for-hire counts, concluding that resentencing would be pointless because he was …

The Sentencing Guidelines provide that the base offense level for certain crimes must be increased based on the amount of financial “loss.” E.g., U.S.S.G. § 2B1.1(b)(1). The commentary to the Guidelines says that “loss” means the actual or intended loss, whichever is greater. Id. cmt. n.3(A).

In an important new ruling, the Third Circuit held in United States v. Banks, — F.4th —-, 2022 WL 17333797 (3d Cir. Nov. 30, 2022), that this commentary is invalid because, under Kisor v. Wilkie, 139 S. Ct. 2400 (2019), it improperly expands the plain meaning of “loss,” which refers to the actual loss only. In the court’s words:

Our review of common dictionary definitions of “loss” point to an ordinary meaning of “actual loss.” None of these definitions suggest an ordinary understanding that “loss” means “intended loss.” […]

Because the commentary expands the definition of “loss” by explaining that generally …