Author Archive | Edward S. Zas
In United States v. Bethea, No. 12-961-cr (2d Cir. Oct. 13, 2013) (Winter, Jacobs, and Straub) (per curiam), available here, the Circuit vacated the district court’s decision denying the defendant’s motion to reduce his sentence under 18 U.S.C. 3582(c).
Convicted of distributing cocaine, Bethea was originally sentenced in September 2010 to 80 months of imprisonment, above the then applicable 60-to-71 month Guidelines range. In September 2011, he filed a 3582(c) motion for a reduced sentence based on retroactive amendments to the crack cocaine sentencing guidelines. Everyone believed at the time that the defendant faced a mandatory statutory minimum sentence of 60 months in prison. The district court summarily denied the defendant’s motion for a sentence below 80 months, stating only that, since the original sentencing range of 60-to-71 months was already found inadequate, a further reduction “would only exacerbate the insufficiency.”
The Circuit vacated, holding that the district …
In United States v. Redd (Shue), No. 13-2971 (2d Cir. Nov. 5, 2013) (Jacobs, Straub, and Pauley) (per curiam), available here, the Circuit held that Alleyne v. United States, 113 S. Ct. 2151 (2013), does not apply retroactively to cases on collateral review.
Alleyne held that “any fact that increases the mandatory minimum [sentence] is an ‘element’ that must be submitted to the jury” and proved beyond a reasonable doubt. 133 S. Ct. at 2155.
Shue, whose 1996 convictions and 292-month prison sentence had been affirmed on direct appeal, and whose 2255 motion had been denied as time-barred, sought to take advantage of the new rule announced in Alleyne. Specifically, he asked the Circuit to reinstate his direct appeal so he could obtain relief under Alleyne.
The Circuit first construed the request as motion for leave to file a successive 2255 motion. The Circuit then held that leave could …
In United States v. Nunez-Banuelos, No. 12-85-cr (2d Cir. Nov. 4, 2013) (summary order), the Circuit upheld the defendant’s convictions of misusing a social security number in violation of 42 U.S.C. 408(a)(7)(B) and of wire fraud in violation of 18 U.S.C. 1341. The evidence at trial showed that the defendant used a social security number that he had made up to obtain unemployment benefits from the Connecticut Department of Labor.
On appeal, the defendant argued that the evidence was insufficient to establish that he had the requisite intent to deceive. He claimed that he did not know that only United States citizens and aliens lawfully residing in the United States could receive unemployment benefits.
The Circuit rejected the defendant’s arguments. The trial evidence showed that the application for unemployment benefits asked the defendant to submit an alien registration number if he was not a citizen but that the defendant submitted a fictional social …