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Author Archive | Eunice Lee

Friday, January 8th, 2021

Second Circuit rejects application of the categorical approach for determining an “offense against property” under the MVRA.

In United States v. Razzouk, No. 18-1395 (2d Cir. Jan. 4, 2021), the Second Circuit, in an opinion by Judge Carney, joined by Judge Walker and District Judge Koeltl, held that in determining whether a conviction is for an “offense against property,” such that restitution is required under the Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C. § 3663A(c)(1)(A)(ii), a court may consider the facts and circumstances of the specific crime committed—not just the generic elements of the offense. The appellant had argued that his bribery conviction, which was based on a statute that does not refer to “property” or necessarily implicate its involvement, should not be subject to mandatory restitution. The Circuit rejected this, finding that an analysis based on the categorical approach was unwarranted and concluding that the facts of his case supported that it was an “offense against property.”

Defendant-appellant Sassine Razzouk pleaded guilty to one count …

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Categories: bribery, categorical approach, MVRA, restitution

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Categories: bribery, categorical approach, MVRA, restitution

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Wednesday, September 30th, 2020

Second Circuit holds that district courts may grant compassionate release on expansive grounds and are not limited to the Sentencing Commission’s criteria.

In United States v. Brooker (Zullo), No. 19-3218, 2020 WL 5739712 (2d Cir. Sept. 25, 2020), the Second Circuit, in an opinion by Judge Calabresi (joined by Judges Winter and Chin), held that the First Step Act of 2018 (“FSA”) empowers district courts evaluating motions for compassionate release to consider any “extraordinary and compelling reasons” for granting release or a sentence reduction, not just those criteria set forth by the Sentencing Commission in guidelines that have been unmodified since the FSA’s passage. The Circuit emphasized that the FSA was intended to expand and expedite compassionate release by allowing defendants to make motions directly to the district courts—thus ending the BOP’s role as the “sole arbiter” of such claims—and by permitting those courts greater discretion in granting release. Accordingly, the Circuit held that the constraints imposed by previously-enacted Sentencing Guideline § 1B1.13 do not apply to compassionate release motions brought …

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Categories: Covid-19, First Step Act of 2018, FSA

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Categories: Covid-19, First Step Act of 2018, FSA

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Friday, July 17th, 2020

Second Circuit grants suppression motion and holds that reasonable suspicion for stop was not established by defendant’s match to suspect’s race, even in combination with other factors, because a description based primarily on race is not particularized enough to guard against police overreach or harassment.

In United States v. Walker (No. 18-3729), __ F.3d __, 2020 WL 3966958 (2d Cir. July 14, 2020), the Second Circuit, in a decision by Judge Pooler (joined by Judges Calabresi and Carney), reversed the district court’s denial of Jaquan Walker’s suppression motion, holding that the police lacked reasonable suspicion to stop Walker based on his purported match to a photograph because the police lacked “little meaningful identifying information” besides the race of the suspect, and even the additional details of “medium-to-dark skin tone, glasses, facial hair, and long hair,” did not suffice to constitute specific, articulable facts upon which to base the stop. In addition, the court held that the search of Walker, which yielded drugs and incriminating statements, was insufficiently attenuated from the unconstitutional stop, despite the subsequent police discovery of an unrelated arrest warrant for Walker. Given that the justification for the stop fell “woefully short …

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Categories: Fourth Amendment, reasonable suspicion, terry stop

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Categories: Fourth Amendment, reasonable suspicion, terry stop

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Wednesday, May 27th, 2020

Second Circuit defines “altered” serial number on a firearm for purposes of the four-level enhancement under U.S.S.G. § 2K2.1(b)(4)(B) to mean that at least one serial number on the firearm is illegible to the naked eye.

In United States v. St. Hilaire, __F.3d__, 2020 WL 2563112 (2d Cir. May 21, 2020), the Second Circuit, in an opinion by Judge Jacobs (joined by Judges Calabresi and Chin), for the first time addressed the meaning of the four-level sentencing guideline enhancement for possessing a firearm with “an altered or obliterated serial number,” under U.S.S.G. § 2K2.1(b)(4)(B). Looking to the rulings of other Circuits, the Second Circuit ruled on two distinct issues pertaining to the enhancement. First, the Court concluded that although a gun may have its serial number on multiple locations, the enhancement applies even if the serial number is “altered or obliterated” in only one of multiple locations. Second, the Court held that for a serial number to be deemed “altered,” the number must be illegible to the naked eye and not merely defaced. The Court affirmed the application of the enhancement in this case based …

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Categories: 922(g), firearms, sentencing

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Categories: 922(g), firearms, sentencing

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Monday, October 28th, 2019

Second Circuit affirms grant of summary judgment dismissing claim of excessive force in handcuffing on grounds of qualified immunity, but notes that the right to raise such a claim is now “clearly established” law.

On October 25, 2019, the Second Circuit, in an opinion by Judge Sack (joined by Judge Hall and Judge Droney), concluded that an excessive force claim under the Fourth Amendment can be established based on excessive use of force in handcuffing, even where the plaintiff signaled discomfort during the handcuffing only through brief and non-verbal manifestations. However, the Court nonetheless affirmed the grant of summary judgment in favor of the defendants and dismissed the plaintiff’s action under 42 U.S.C. § 1983 because it was not “clearly established law” at the time of the officer’s actions that a plaintiff who did not verbally complain or request to have her handcuffs adjusted or removed could recover on a handcuffing-based excessive force claim. Therefore, the officer was entitled to qualified immunity, and the Court affirmed the district court’s grant of summary judgment for the defendants.

In Cugini v. City of New York, __ …

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Categories: Fourth Amendment, Police Misconduct, Uncategorized

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Categories: Fourth Amendment, Police Misconduct, Uncategorized

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Wednesday, October 23rd, 2019

Second Circuit affirms application of Sentencing Guidelines enhancement under § 2D1.1(b)(16)(E) for criminal conduct committed as part of a livelihood, addressing for the first time what constitutes “a substantial period of time” in this context and what it means for criminal activity to be engaged in as a “primary occupation.”

On October 22, 2019, the Second Circuit, in an opinion by Judge Chin (joined by Judge Cabranes and concurred with, in part, by Judge Calabresi), affirmed the application of two Sentencing Guidelines enhancements, including one for committing an offense as part of criminal conduct engaged in as a livelihood. With regard to that enhancement, the Court addressed several issues of first impression in this Circuit. Judge Calabresi concurred in the result but not the discussion of the criminal livelihood enhancement.

In United States v. Moran (reported case name United States v. Pristell), __ F.3d __, 2019 WL 5382053 (2d. Cir. 2019), Lamont Moran was sentenced, following a guilty plea, to 84 months’ imprisonment for conspiring to distribute and possess with intent to distribute 100 grams or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. Before sentencing, Moran challenged both the managerial/supervisory role enhancement and the …

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Categories: sentencing

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Categories: sentencing

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Friday, September 6th, 2019

Second Circuit holds that Fourth Amendment not violated by Suffolk County program that permits nonprofit organization to conduct home visits with individuals on the sex offender registry in order to confirm the accuracy of their registration address.

On September 4, 2019, the Second Circuit, in an opinion by Judge Droney (joined by Judge Cabranes and Judge Raggi), affirmed a grant of summary judgment in favor of Suffolk County in a case where an individual who was required to register as a sex offender argued, in a claim for damages under 42 U.S.C. § 1983, that home visits conducted by an organization the county had contracted with to verify his address for the registry constituted unreasonable seizures. The Court, which assumed without deciding that there was state action and that the plaintiff was “seized” within the meaning of the Fourth Amendment, held that the visits were constitutional under the “special needs” doctrine.

In Jones v. County of Suffolk and Parents for Megan’s Law, No. 18-1602-cv (2d Cir. Sept. 4, 2019), the County of Suffolk had contracted with a private nonprofit organization, Parents for Megan’s Law (“PFML”), to visit …

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Categories: Fourth Amendment, Sex offender registration, special needs

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Categories: Fourth Amendment, Sex offender registration, special needs

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Second Circuit upholds prolonged traffic stop based on suspicion that car was stolen, despite database check confirming that it was not stolen.

In United States v. Wallace, No. 17-0472 (2d. Cir. Sept. 3, 2019), the Second Circuit, in an opinion by District Judge Abrams (joined by Judge Winter), upheld the district court’s denial of the defendant’s motion seeking suppression of a firearm recovered following a prolonged traffic stop. Judge Pooler dissented.

After being pulled over for a defective brake light at 7:20 pm, defendant Wallace produced a valid driver’s license but not his registration card. The officers noticed that the registration and inspection stickers on the car were damaged and faded and that there were marks on the car’s door suggesting that it had been pried open. Wallace explained that the stickers had been damaged by a defogging spray and that the door damage was from a prior occasion when he had locked himself out of the car. Although the Vehicle Identification Number (“VIN”) on the registration sticker was only partially …

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Categories: car stop, Fourth Amendment, reasonable suspicion, traffic stop

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Categories: car stop, Fourth Amendment, reasonable suspicion, traffic stop

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