Author Archive | Edward S. Zas

Moore appealed his 120-month prison sentence for Hobbs Act robbery and related crimes. He argued that the district court committed plain error by upwardly departing from the Guidelines range without proper notice, in violation of Fed. R. Crim. P. 32(h). He also challenged the sentence as substantively unreasonable.

The Circuit was not persuaded. First, the Court held that, though the district court alluded to a “departure” twice and never mentioned a “variance,” the sentencing transcript made clear that the district court was imposing a non-Guidelines “variance,” which required no advance notice. Indeed, the district court stated after sentencing that its references to a “departure” were mistaken, and that only a variance was intended.

Second, the 120-month sentence was not substantively unreasonable. The defendant’s history reflected multiple instances of gun

Convicted of fraud in connection with identification information, see 18 U.S.C. § 1028(a)(7), Hatala was sentenced to 30 months in prison. This summary order affirms the sentence as procedurally and substantively reasonable.

First, the district court properly applied a two-level enhancement for using “sophisticated means” to commit the fraud. The court found that Hatala used a sophisticated program and hacking technique to commit his crime, stole hundreds of thousands of usernames and password combinations, and deployed his extensive knowledge of computer programming and database systems to bypass professionally-designed security systems. Accordingly, the “sophisticated means” enhancement was proper. 

Second, the district court did not improperly “double count” by applying both the “sophisticated means” enhancement and other enhancements for loss and use of an access device. “Although loss amount and the use

This summary order holds that the district court properly refused to suppress evidence found following a 911 call. (As discussed below, the Court issued a separate, published decision in this same case reversing one of Clark’s convictions for insufficiency of the evidence.)

A 911 operator received a call from a woman in a bar saying that Chris and Jason Richardson were outside in a white Jeep Cherokee with guns and were going to attack somebody. The caller gave her first name only and did not want any responding officers to interview her. The 911 operator relayed the information to the police, who recognized the Richardsons as having been involved in prior violent crimes.

When the police arrive at the scene, they blocked the Jeep Cherokee with their patrol cars and

This published decision holds that the trial evidence was insufficient to support the defendant’s conviction for possession of cocaine. Judge Droney dissents.

In response to a 911 call reporting that some men had just left a bar in Lockport, New York, in a white Jeep Cherokee after trying to “jump somebody,” the police found Clark and three others sitting in the Cherokee. They discovered a firearm in the vehicle and arrested Clark. The police placed Clark, alone, in the rear compartment of a police cruiser; he was handcuffed securely behind his back. Though Clark was patted down, no drugs or drug paraphernalia were found. But after Clark was brought to the police station, the police found crack cocaine in the police car between the back of the back-seat cushion and the

This summary was provided by noted criminal defense attorney Francisco Celedonio, who also serves on the Board of Directors of Federal Defenders of New York, Inc.:

This summary order affirms a sentence imposed upon resentencing, after a seven-year delay from the original remand from the Circuit. Kurti argued that the delay violated due process, and also challenged the substantive reasonableness of his sentence. The Circuit held that the delay alone (some of which was occasioned by Kurti) was insufficient to warrant relief, and that Kurti had to demonstrate “some substantial and demonstrable prejudice” from the delay. Because Kurti faced a substantial sentence (the Guidelines range was 360 months-to-life), he could not succeed on either the due process claim or the claim of substantive unreasonableness.

This summary has been provided by noted criminal defense attorney Francisco Celedonio, who also serves on the Board of Directors of Federal Defenders of New York, Inc.:

In this illegal reentry case under 8 U.S.C. § 1326(a) and (b)(2), the Circuit affirmed a 77-month sentence imposed following the district court’s (Judge Irizarry’s) denial of a “fast-track” downward departure motion pursuant to U.S.S.G.§ 5K3.1.

Shand was arrested in 2011 after he produced false identification at a traffic stop. ICE determined that he had been previously deported and had reentered without authorization. Shand was thus indicted for being “found in the United States,” in violation of 8 U.S.C. § 1326(a). Shand signed a plea agreement under the EDNY’s “fast-track” program, which yielded an estimate offense level 16 in CHC III, including a  four-level reduction

The defendant, a citizen of Honduras, was convicted after a jury trial of being “found in the United States” illegally after he was deported from the United States, in violation of 8 U.S.C.§ 1326(a). The Circuit reversed the conviction, holding that the defendant was not in the United States when he was “found,” and that, when he was later discovered in the United States, he was not here voluntarily. Accordingly, the Court held, the conviction “was plainly erroneous and it would constitute manifest injustice to allow it to stand.”

The facts were undisputed. Vasquez Macias (“Vasquez”), an alien, was deported from the United States in 2000, following his conviction for a drug crime. He returned to the United States in 2001 and lived here illegally for about a decade. He then

Convicted of willfully and forcibly interfering with the performance of duties of Deputy United States Marshals, the defendant appealed pro se. The Court rejected all eight of his arguments:

First, the district court properly denied the defendant’s motion to recall prosecution witnesses for further cross-examination because he had a full opportunity to cross-examine during the government’s case and offered no explanation for failing to question the witnesses more fully at that time. 

Second, the district court properly rejected the defendant’s motion for a new trial based on the alleged destruction of evidence. The defendant did not identify what evidence was destroyed or why he was entitled to a new trial.

Third, trial counsel was not ineffective for not filing an interlocutory appeal from the district court’s denial of his

The defendant violated supervised release by leaving the judicial district without permission. He was sentenced to 14 months of imprisonment, the top of the advisory range, and a new 22-month term of supervised release.

The Circuit held that this sentence was procedurally and substantively reasonable. First, the sentencing court did not improperly consider that the defendant left the district by using false identification, even though the defendant never specifically pled guilty to that conduct. The defendant’s use of an alias to leave the district, the Circuit held, was “relevant to the traveling violation,” and supported the district court’s conclusion that he had a “continued disrespect … [for] the law.” 

The 14-month sentence was also substantively reasonable. The district court found that this sentence was necessary to achieve “specific deterrence,” and

Convicted of wire fraud, the defendant claimed that the district court committed by plain error by not allowing him to present evidence concerning the negligence of the financial institutions he defrauded. He argued that the evidence was relevant to the materiality element of wire fraud. The Circuit disagreed, holding that “evidence of a particular lender’s unreasonableness is irrelevant to the materiality of Isola’s false statements because materiality is an objective question.”

The Circuit also rejected the defendant’s arguments that his 37-month prison sentence was procedurally and substantively unreasonable. First, the Court disagreed with the defendant’s claim that the sentencing court  improperly conflated the standard for a below-Guideline “variance” with the stricter standard for a downward “departure.” Second, the Court held that the sentence — the bottom of the Guidelines range

DeLaRosa was convicted of conspiring with John Brooker and others to distribute drugs in Vermont “and elsewhere” from 2006 to “on or about June 16, 2009.” On appeal, he argued principally that the district court erred by admitting evidence of drug trafficking in Arizona that took place after Brooker’s arrest on June 16, 2009.

The Circuit held that the evidence was properly admitted. The evidence was not offered to prove  prior bad acts under Fed. R. Evid. 404(b), but rather as direct evidence of the single drug-trafficking conspiracy orchestrated by DeLaRosa. Trial testimony showed that the conspiracy’s goal was to acquire narcotics from distributors in New York, Florida, and Arizona and to deliver the drugs to customers in Vermont, New York, and Massachusetts. The conspiracy did not end just because