Author Archive | Matt Larsen

Tuesday, October 4th, 2016

U.S. v. Jones: Hold That Thought…

patience_2014_01_31-22

In United States v. Jones, previously blogged about here, the Second Circuit held New York robbery is not a categorical “crime of violence” under the Career Offender Guideline, U.S.S.G. § 4B1.2.  The Court’s opinion was based in part on the view, shared by the government and all but one of the circuits, that the Guideline’s residual clause is “likely void for vagueness in light of the Supreme Court’s analysis of the ACCA’s [Armed Career Criminal Act’s] identical phrase in Johnson v. United States, 135 S. Ct. 2551 (2015).”

In an order published yesterday, the Court vacated the Jones opinion pending the Supreme Court’s decision in Beckles v. United States.  Beckles will decide whether the Guideline’s residual clause survived Johnson.  After Beckles is decided, a final judgment will issue in Jones.

Takeaways for the Defense Bar

1.  In ACCA cases, the absence of Jones poses …


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Categories: ACCA, career offender, Johnson, robbery

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Friday, September 23rd, 2016

Is Hobbs Act Extortion a “Crime of Violence”?

In today’s United States v. Sheehan, the Second Circuit (Winter, Wesley, Lynch) affirmed a conviction for using a “destructive device” during a “crime of violence,” in violation of 18 U.S.C. § 924(c)(1)(B)(ii).

Wearing a wig, an arm sling and makeup, Sheehan planted an almost-complete pipe bomb in a Home Depot on Long Island.  He sent a letter to the store, saying there was a bomb and demanding $2 million so he could “go[] to a warm climate with thin brown girls and drink [him]self to death.”  He promised to repay the money in the form of a $2 million “life insurance policy naming Home Depot beneficiary.”  The almost-complete bomb was recovered and no one was hurt.

Arrested and brought to trial, Sheehan conceded guilt on what was charged as the underlying “crime of violence” — Hobbs Act extortion in violation of 18 U.S.C. § 1951 — but denied …

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Categories: explosives, extortion

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Categories: explosives, extortion

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Thursday, September 22nd, 2016

net-meme

In today’s United States v. Harris, the Second Circuit (Newman, Calabresi, Raggi) decided two things with respect to supervised release.

First, “18 U.S.C. § 3583(e) does not preclude revocation of supervised release on the basis of conduct that earlier prompted a modification of supervision conditions.”  Here, the district court first modified Harris’s terms of supervision — based on his being arrested for allegedly selling drugs — and later revoked supervision when that suspected violation was confirmed by two police officers credibly testifying to witnessing the drug sale.

Second, Federal Rule of Criminal Procedure 32.1(b)(2)(c) does not preclude revocation of supervised release on the basis of hearsay if (1) there is good reason to proffer hearsay and (2) the hearsay is sufficiently reliable.  Here, a witness who claimed Harris punched her “professed fear of retaliation” if she testified against him, which the Court deemed good reason to excuse her …


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Categories: Confrontation Clause, supervised release

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Thursday, July 21st, 2016

New York Robbery is Not a “Crime of Violence”

marble rye-blog

In today’s United States v. Jones, the Second Circuit (Walker, Calabresi, Hall, C.JJ.) overruled its prior precedents in light of Johnson v. United States, 559 U.S. 133 (2010), and Johnson v. United States, 135 S. Ct. 2551 (2015), to hold that “a first‐degree robbery conviction in New York is no longer necessarily a conviction for a ‘crime of violence’ as that term is used in the Career Offender Guideline.”

New York robbery, whatever its degree, is “forcible stealing” and requires actual or threatened “physical force upon another person.”  N.Y. Penal Law § 160.00.  This does not make the offense a “crime of violence,” the Circuit explained, because New York courts “have made clear that ‘forcible stealing’ alone does not necessarily involve the use of ‘violent force'” required to make something a “crime of violence” under the Guideline’s force clause.  “Violent force” is “strong” and “substantial,” Johnson, …


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Categories: ACCA, career offender, crime of violence, robbery

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Tuesday, July 19th, 2016

Filing a Notice of Appeal: Just Do It!

In today’s United States v. Lajud-Pena (Diaz), the Second Circuit (Pooler, Parker, Livingston, C.JJ.) granted the government’s motion to dismiss an untimely appeal but remanded with instructions that the district court “convert the Appellant’s notice of appeal (as supplemented by the Defendant’s brief claiming ineffectiveness resulted in his failure to timely file his appeal) into a petition” under 28 U.S.C. § 2255.

Should the aspiring appellant establish in district court that his lawyer failed to timely file a notice of appeal as instructed, the relief will presumably be issuance of a new judgment from which he could appeal.  See Roe v. Flores-Ortega, 528 U.S. 470 (2000); United States v. Fuller, 332 F.3d 60 (2d Cir. 2003).  And should that appeal ultimately prove unsuccessful, the Circuit indicated the “converted” § 2255 petition seeking “only reinstatement of the right to a direct appeal” will not render a subsequent § …

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Categories: Notice of Appeal

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Categories: Notice of Appeal

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“Precipitous Pepper Purchase” Precludes Pot Pushers’ Partying

peppers

In today’s United States v. Compton, the Second Circuit (Walker, Raggi, Hall, C.JJ.) held a Border Patrol agent had reasonable suspicion to stop Compton and his brother, found to be transporting 145 pounds of marijuana, based on “(1) the brothers’ avoidance of [a Border Patrol] checkpoint, (2) the checkpoint’s proximity to the [Canadian] border, and (3) the brothers’ peculiar attempt to conceal the avoidance.”  The “peculiar attempt” was the brothers’ “abruptly slow[ing] down” when their SUV came within sight of the checkpoint and then “veer[ing] into the U‐shaped driveway of [a] vegetable stand” where they each bought “a pint of peppers.”

“Because [the agent] had already determined that the SUV had made the abrupt turn into the vegetable stand in order to avoid the checkpoint, [he] could reasonably interpret the pepper purchase to be an attempt to conceal that avoidance.  He could reasonably discount the probability of an alternate …


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Categories: Fourth Amendment, reasonable suspicion, terry stop

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Tuesday, July 12th, 2016

The PSR Must be Read AND DISCUSSED

DISCUSS

In today’s United States v. Richards, the Second Circuit emphasized the importance of strictly adhering to Federal Rule of Criminal Procedure 32(i)(1)(A), which requires a judge to “verify that the defendant and the defendant’s attorney have read and discussed the presentence report and any addendum to the report.”  The Circuit implied that, where the “discussion” is not confirmed, raising that issue on appeal may require reversal.…

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Categories: Rule 32

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Categories: Rule 32

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Tuesday, June 21st, 2016

Supreme Court Again Excuses “Unconstitutional Police Conduct”

whoops

In yesterday’s Utah v. Strieff, five of the eight members of the Supreme Court held the existence of an arrest warrant for someone a police officer unlawfully stops sufficiently “attenuates” the taint of the illegal stop, at least where the stop is not “flagrantly” unconstitutional.

Based on an anonymous tip, a South Salt Lake City police detective conducted “intermittent surveillance” of a house to see if it was being used to sell drugs.  He saw people leave “a few minutes after arriving at the house,” and this “raise[d] his suspicion that the occupants were dealing drugs.”  One day he saw Strieff leave the house; he followed Strieff on foot and stopped him.  When he got Strieff’s ID card and relayed the information to a colleague, he discovered “Strieff had an outstanding arrest warrant for a traffic violation.”  The detective then arrested Strieff and searched him, finding drugs in his …


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Categories: Exclusionary Rule, Fourth Amendment

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Thursday, April 21st, 2016

Second Circuit “Disturb[ed] That District Courts Do Not Routinely Follow” Rule 11

rule 11 meme

Today in United States v. Pattee, the Second Circuit (Calabresi, Lynch, Lohier, CJJ.) found it “disturbing that district courts do not routinely follow the minimal procedures put in place to protect defendants’ rights.”

In accepting a guilty plea to producing, distributing and possessing child pornography, the district court (Geraci, Ch.J.) failed to advise the defendant of “five of the approximately fifteen rights” listed in Federal Rule of Criminal Procedure 11.  The Circuit found this troubling, as the “Court has stated time and again that [w]e have adopted a standard of strict adherence to Rule 11” and that “compliance with Rule 11 is not a difficult task” because “errors can be avoided if a district or magistrate judge has a standard script for accepting guilty pleas. . . .  Yet failures to meet those requirements are a recurring issue.”  The Court further cautioned that “even strict adherence to Rule 11 …


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Categories: child pornography, ineffective assistance of counsel, Rule 11

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