Author Archive | Edward S. Zas

Tuesday, November 26th, 2013

Defendant Gave Implied Consent to Seizure By Disclosing Location of Gun

United States v. Simmons, No. 12-1637-cr (2d Cir. Nov. 26, 2013) (Pooler, Lohier, and Carney) (summary order), available here

The panel held that the seizure of a firearm from the defendant’s room did not violate the Fourth Amendment because he gave “implied consent” to the seizure.

The district court found that, by telling police officers the precise location of the gun, the defendant  implicitly consented to them seizing it. The court also found that such consent was given voluntarily.

The Circuit, finding no clear error in these findings, affirmed the denial of the defendant’s motion to suppress.  …

Posted by
Categories: Uncategorized

Posted By
Categories: Uncategorized

Continue Reading

Fair Sentencing Act Does Not Apply to Defendants Sentenced Prior to August 3, 2010

United States v. Rowley, No. 12-3975 (2d Cir. Nov. 26, 2013) (Kearse, Jacobs, Parker) (summary order), available here

This summary order reaffirms that the Fair Sentencing Act does not apply to defendants who were convicted and sentenced before August 3, 2010. See United States v. Diaz, 627 F.3d 930, 931 (2d Cir. 2010).

The one noteworthy aspect of the summary order is that the Court, apparently for the first time, explicitly rejected the Sixth Circuit’s contrary decision in United States v. Blewett, 719 F.3d 482 (6th Cir. 2013). The panel noted that Blewett “arguably contradicted” binding Sixth Circuit precedent and has since been vacated pending rehearing en banc. The panel further stated that Blewett appeared to be “wrongly decided” and that every circuit to consider Blewett “has declined to follow its lead.” …

Posted by
Categories: Uncategorized

Posted By
Categories: Uncategorized

Continue Reading

District Court Committed No Plain Error in Setting Plea Deadline for “Acceptance Points” or Imposing Restitution Beyond Amount in Plea Agreement

United States v. Doyle, No. 11-5265-cr (2d Cir. Nov. 26, 2013) (Kearse, Jacobs, and Straub) (summary order), available here

Doyle pled guilty to wire fraud and was sentenced to 72 months of imprisonment and $880,000 in restitution. On appeal, he argued that the district judge violated Fed. R. Crim. P. 11(c)(1) by participating in plea discussions. He noted that the court warned him that there would be a deadline for “acceptance of responsibility points” and that, if he intended to plead guilty, he should do so “before June 21” so that the could receive the extra third point for acceptance of responsibility.

The panel found no reversible plain error because the defendant could not show that, but for the alleged remarks, he would not have pled guilty. The Court noted that the defendant pled guilty nearly three weeks after the announced June 21 “deadline” and had not shown a reasonable probability that he …

Posted by
Categories: Uncategorized

Posted By
Categories: Uncategorized

Continue Reading

Search and Seizure of Laptop Computer Did Not Violate Fourth Amendment

United States v. Howe, No. 12-4394-cr (2d Cir. Nov. 25, 2013) (Pooler, Raggi, and Wesley) (summary order), available here

Convicted of receiving and possessing child pornography, Howe was sentenced to 180 months of imprisonment. On appeal, he argued that the district court should have suppressed the evidence against him because (1) the police lacked probable cause to seize his laptop computer without a warrant; (2) the delay between seizure of his laptop and the issuance of a federal warrant to search the computer was  unreasonable; and (3) no probable cause existed to support issuance of the federal warrant to search the laptop.

The panel rejected all three arguments. First, probable cause existed to seize the laptop because a police officer had “viewed the Sample Pictures folder” on the computer, which contained a “lascivious” image.

Second, though the government’s delay in seeking the federal search warrant was “quite lengthy,” it was not constitutionally unreasonable …

Posted by
Categories: Uncategorized

Posted By
Categories: Uncategorized

Continue Reading
Monday, November 25th, 2013

Defendant Who Pled Guilty Under Rule 11(c)(1)(C) Plea Agreement Was Not Eligible for Resentencing Under Crack Amendments

United States v. King, No. 12-2262-cr (2d Cir. Nov. 25, 2013) (Pooler, Raggi, and Wesley) (summary order), available here

This summary order affirms the district court’s ruling that the defendant was not eligible for a reduced sentence under 18 U.S.C. 3582(c) and U.S.S.G. 1B1.10.

The defendant pled guilty in 1999, pursuant to a Rule 11(c)(1)(C) plea agreement, to two racketeering offenses: conspiracy to shoot a rival gang member and conspiracy to distribute cocaine and cocaine base. He was sentenced to 20 years of imprisonment, below the life term called for by the applicable Guidelines.

The panel held that the defendant was not eligible for a reduced sentence because his sentence was not “based on” a range that has subsequently been lowered by the Sentencing Commission. 18 U.S.C. 3582(c)(2). Rather, the sentence was based on the plea agreement, which did not expressly use a Guidelines sentencing range to establish the term of imprisonment, …

Posted by
Categories: Uncategorized

Posted By
Categories: Uncategorized

Continue Reading
Thursday, November 21st, 2013

Evidence Was Sufficient to Establish that Defendant Crossed State Lines with Intent to Commit a Sex Crime

United States v. Escobar-Gonzalez, No. 12-4657-cr (2d Cir. Nov. 21, 2013) (Pooler, Raggi, and Wesley) (summary order), available here

This summary order holds that the evidence was sufficient to support the defendant’s conviction of  transporting a minor interstate to engage in illegal sexual activity. The panel also held that the district court did not improperly rely at sentencing on a prior, uncharged rape allegation. [Disclosure: the Federal Defenders of New York represents Mr. Escobar-Gonalez.]

The facts were these: The defendant drove a group of illegal aliens from Dallas to the New York tri-state area. Toward the end of the trip, he allegedly sexually assaulted one of the aliens at a rest stop in New Jersey. 

The defendant argued on appeal that the evidence was insufficient to establish that he formed the intent to commit the sexual assault before he crossed state lines, as the charged sexual crimes …

Posted by
Categories: Uncategorized

Posted By
Categories: Uncategorized

Continue Reading

Court Upholds Rule 404(b) Decision and Sufficiency of Evidence

United States v. Cartagena, No. 12-4910-cr (2d Cir. Nov. 21, 2013) (Newman, Hall, and Lynch) (summary order), available here

Cartagena was convicted by a jury of attempting and of conspiring to distribute at least five kilograms of cocaine. At trial, the court admitted testimony that Cartagena had been involved earlier an an uncharged 2009 drug conspiracy.

The panel held that this evidence was properly admitted to provide “relevant background information” that explained the defendant’s relationship to Seyfried, a co-conspirator, and the defendant’s knowledge of Seyfried’s role in a national drug conspiracy. The evidence was also properly admitted under Fed. R. Evid. 404(b) because it provided relevant proof of the defendant’s specific knowledge of Seyfried’s drug activities and proof of the relationship between the two men. The evidence was not unduly prejudicial because it did not involve conduct more serious than the charged crime.

The panel also held that the …

Posted by
Categories: Uncategorized

Posted By
Categories: Uncategorized

Continue Reading

Restitution Order Was Not Plainly Erroneous

United States v. Schwamborn, No. 12-5125-cr (2d Cir. Nov. 21, 2013) (Pooler, Raggi, and Wesley) (summary order), available here

Convicted of securities fraud, the defendant was sentenced principally to 121 months of imprisonment and about $182,000 in restitution. On appeal, he challenged the restitution order on three grounds: (1) one of the victim’s affidavits was unreliable and overstated the loss amount; (2) the defendant had not caused the victims’ losses; and (3) the need to provide restitution was outweighed by the burden placed on the sentencing process.

The court of appeals, applying plain error analysis, rejected all three arguments. First, the victim’s affidavit was sworn, notarized, and sufficiently reliable to support its probable accuracy. Second, the evidence supported the district court’s conclusion that the defendant was the proximate cause of the victims’ losses. Third, the factual circumstances of the case were not so complex as to unduly prolong the …

Posted by
Categories: Uncategorized

Posted By
Categories: Uncategorized

Continue Reading
Wednesday, November 20th, 2013

Sentence of Imprisonment Plus Supervised Release Following Revocation Was Reasonable

United States v. Beckett, No. 12-4233-cr (2d Cir. Nov. 20, 2013) (Pooler, Raggi, and Wesley) (summary order), available here

After the defendant violated his supervised release, the district court imposed a sentence of 10 months of imprisonment, to be followed by a new, 19-month term of supervised release. On appeal, the defendant argued that the new term of supervised release was unreasonable because it contradicted the Probation Office’s recommendation against any further supervised release.

The Circuit held that the new term of supervised release was reasonable. The panel noted that the Probation Office’s recommendation against supervised release was not binding on the district court, and that the court gave valid reasons for rejecting the recommendation. The court cited the defendant’s need for drug and alcohol treatment and the need to protect the public from any further crimes, valid statutory factors. Accordingly, the Circuit affirmed.   …

Posted by
Categories: Uncategorized

Posted By
Categories: Uncategorized

Continue Reading
Tuesday, November 19th, 2013

Circuit Affirms 300-Month Sentence for Armed Career Criminal

United States v. Roy, 12-3242-cr (2d Cir. Nov. 19, 2013) (Lynch, Chin, and Carney) (summary order), available here

Convicted of distributing marijuana and of possessing a firearm as a previously convicted felon, in violation of 18 U.S.C. 922(g)(1), the defendant was sentenced under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. 924(e), to 300 months of imprisonment. In this summary order, the court of appeals upheld the sentence as procedurally and substantively reasonable.
Under ACCA, a person who violates 18 U.S.C. 922(g) and has “three previous convictions … for  a violent felony … committed on occasions different from one another … shall be … imprisoned not less than fifteen years.” Roy had three prior state convictions in Connecticut for burglary and two for arson. If these convictions were for “generic” burglary or “generic” arson, they qualified as “violent felon[ies]” under ACCA.
The Circuit held that the two arson convictions
Posted by
Categories: Uncategorized

Posted By
Categories: Uncategorized

Continue Reading
Friday, November 15th, 2013

District Court Did Not Adequately Explain Refusal to Reduce Sentence

United States v. Christie, No. 13-245-cr (2d Cir. Nov. 15, 2013) (Lynch, Chin, and Droney), available here

Defendant moved for a sentence reduction under 18 U.S.C. 3582(c)(2), based on the 2011 Amendments to the Sentencing Guidelines lowering the penalties for crack cocaine offenses. Both the Probation Office and the government agreed that the defendant was eligible for a reduction. But the government argued that the court should decline to reduce the sentence because of the defendant’s firearms offenses and criminal history.
The district court entered an order that stated only that the defendant’s motion was “denied.” The court did not explain the reasons for its decision. 
The Circuit held that the court’s failure to explain its decision made meaningful appellate review impossible. The Circuit noted that the defendant’s sentence was above the now-applicable Guidelines range and that nothing in the record revealed why an above-Guidelines sentence was warranted. Because
Posted by
Categories: Uncategorized

Posted By
Categories: Uncategorized

Continue Reading