Author Archive | Sarah Baumgartel

Monday, March 18th, 2024

Special conditions of supervised release must be based on an individualized assessment of the defendant and adequately explained.

In two recent decisions, the Second Circuit reiterated the requirements for imposing special conditions of supervised release: a sentencing court must undertake an “individualized assessment” of the defendant and “state on the record the reason for imposing” any special condition. The failure to do so is error.

In United States v. Alex Oliveras, No. 21-2954, — F.4th — (2d Cir. March 15, 2024), the Circuit vacated a special condition allowing the federal probation officer to conduct suspicionless searches of the defendant and his property.

The defendant argued, first, that this special condition violated the Fourth Amendment, and, second, that it was not adequately justified on the record.

The Circuit recognized that individuals on supervised release have a diminished expectation of privacy, and that probation officers have a legitimate need to fulfill their supervisory duties by conducting searches. At the same time, supervisees retain Fourth Amendment rights and conditions infringing …


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Categories: Fourth Amendment, special needs, supervised release

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Supreme Court narrows the “expanded” safety valve.

Under 18 U.S.C. § 3553(f), the so-called “safety valve” provision, district courts have a limited power to impose a sentence below the statutory mandatory minimum in certain drug cases. The defendant’s offense must not involve particular aggravating factors (violence, guns) and the defendant must have a limited criminal history. But how limited?

The 2018 First Step Act expanded this provision to apply to any defendant who “does not have–

(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;
(B) a prior 3-point offense, as determined under the sentencing guidelines; and
(C) a prior 2-point violent offense, as determined under the sentencing guidelines ….”

But is that “and” an “and” or an “or”? In other words, is any one of these criteria (4 points or a 3-point offense or a 2-point violent offense) disqualifying or is a …

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Categories: safety valve

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Categories: safety valve

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Friday, September 29th, 2023

Supreme Court will revisit the application of the Confrontation Clause to forensic evidence.

The Supreme Court has granted certiorari in Smith v. Arizona, No. 22-899. The question presented is:

Whether the Confrontation Clause of the Sixth Amendment permits the prosecution in a criminal trial to present testimony by a substitute expert conveying the testimonial statements of a nontestifying forensic analyst, on the grounds that (a) the testifying expert offers some independent opinion and the analyst’s statements are offered not for their truth but to explain the expert’s opinion, and (b) the defendant did not independently seek to subpoena the analyst.

Defense counsel should be sure to make Confrontation Clause objections whenever the government seeks to use or admit forensic evidence at trial without calling the individual (or all of the individuals) who actually performed all of the underlying forensic testing.

Smith will hopefully bring some clarity to this area of law. The Supreme Court has long held that criminal defendants have a …


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Categories: Confrontation Clause, Sixth Amendment

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Thursday, July 20th, 2023

Plaintiff can pursue punitive damages related to his unlawful state supervision

In Aponte v. Perez, No. 20-2186 (2d Cir. July 20, 2023), the Second Circuit rules largely in favor of the plaintiff-appellant, who brought a civil rights suit after he was wrongfully subjected to post-release supervision.

 In 2000, plaintiff Felix Aponte was sentenced in New York State court to 8 years in prison for robbery. After sentencing, the New York State Department of Correctional Services (DOCS) “administratively added a five-year term of post-release supervision” (PRS). This practice seems obviously unconstitutional and, in 2006, the Second Circuit so held. Aponte was eventually resentenced in 2008.

In the meantime, Aponte was subject to this illegal supervision term. He was imprisoned for violating the terms of his (illegal) supervision.

Aponte, acting pro se, brought suit under 42 U.S.C. § 1983 against DOCS and others, seeking damages related to his unlawful supervision and incarceration.

The district court found a violation of Aponte’s due …

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Categories: Uncategorized

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Wednesday, July 19th, 2023

Second Circuit finds that VICAR murder may categorically qualify as a crime of violence

This week, in United States v. Davis, No. 21-1486-cr (2d Cir. July 18, 2023), the Circuit holds that murder in aid of racketeering (also known as “VICAR murder”), 18 U.S.C. § 1959(a)(1), may categorically qualify as a “crime of violence” for purposes of 18 U.S.C. §§ 924(c) and 924(j)(1).

In Davis, the defendant argued that VICAR murder is not categorically a crime of violence because it includes generic, second-degree murder, which can be committed recklessly. And offenses with a mens rea of recklessness do not categorically qualify as violent felonies. See Borden v. United States, 141 S. Ct. 1817, 1834 (2021).

The Circuit rejected this argument. The Circuit found that VICAR murder is divisible, meaning a court must apply the “modified categorical approach” to determine the specific elements of a defendant’s underlying murder offense. Here the defendant’s jury instructions established that he was charged with and convicted …


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Categories: crime of violence, murder, racketeering

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Tuesday, May 16th, 2023

Supreme Court to decide how to decide which state drug convictions qualify as ACCA predicates

The Supreme Court has granted certiorari in another pair of ACCA cases. Under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), a defendant who possesses a gun faces a minimum 15-year sentence if he has three prior state or federal convictions that qualify as “violent” felonies or “serious drug offenses.” We have talked a lot recently about what qualifies as a “violent” felony. Now it is time to consider “serious drug offenses.”

Under § 924(e)(2)(A), a “serious drug offense” includes offenses “under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law.”

Courts use the categorical approach to decide if a prior state conviction involves a “controlled substance,” comparing the elements of that …

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Categories: ACCA

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Friday, March 3rd, 2023

Circuit rejects new trial bid, despite evidentiary errors and refusal to voir dire on “antisemitic bias.”

In United States v. Mendlowitz, No. 21-2049-cr (2d Cir. March 2, 2023) (summary order), the Second Circuit affirms the defendant’s wire fraud convictions, despite possible evidentiary errors and the district court’s refusal to ask about “potential antisemitic bias” during jury selection.

On appeal following trial, the defendant challenged the district court’s exclusion of a proffered expert witness and a recorded conversation between the defendant and a cooperating witness. The Circuit largely agreed with defendant’s arguments: it recognized that, contra the district court, the proffered expert testimony about standard industry practices would have been relevant to the defendant’s good faith defense. The expert testimony also would have provided relevant information outside the average juror’s knowledge and beyond any government witness testimony.

With respect to the recorded conversation, the defendant argued that it reflected his state of mind at the time of the charged conduct and supported his defense. The district …


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Categories: expert witnesses, harmless error, jury selection, voir dire

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Circuit orders resentencing in light of statements that created a risk of the appearance that a defendant’s nationality impacted his sentence.

In United States v. Vasquez-Drew, No. 20-2195-cr (2d Cir. March 2, 2023) (summary order), the Second Circuit ordered the defendant resentenced before a new district judge because certain remarks the original judge made at sentencing created a “risk that a reasonable observer … ‘might infer, however incorrectly’ that Vasquez’s nationality played a role in determining his sentence.”

In sentencing the defendant, a Bolivian national, the district court (Cote, J.) stated that the sentence was “motivated by concerns about appropriate punishment, but also general deterrence,” and that it was “important” “that the people in Bolivia understand the kind of sentences that are potentially imposed here from engagement in activity to send cocaine into America.”

This decision follows an interesting and wide-ranging oral argument available here and previewed here.

Ultimately, the Circuit’s short summary order hewed closely to precedent: “[E]ven the appearance that the sentence reflects a defendant’s race or …


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Categories: sentencing, Uncategorized

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Monday, February 27th, 2023

The Second Circuit Grants Panel Rehearing in Gibson to Reject the Government’s Request to Recast its Holding as Dicta

In United States v. Gibson, 55 F.4th 153 (2d Cir. 2022), the Second Circuit held that the defendant’s 2002 New York state conviction for attempted third-degree criminal sale of a controlled substance was not a “controlled substance” offense under the career offender Sentencing Guideline because the New York drug schedules in 2002 included naloxegel, which had been removed from the federal schedules in 2015, making the New York offense categorically broader than the federal controlled substance offense when Gibson was sentenced in 2020. The government had conceded that the New York 2002 schedule was broader than the current federal schedule, but argued that the comparison should be between the New York and federal schedules in 2002. The Circuit rejected that argument. See December 8, 2022, Blog post.

The government (W.D.N.Y.) sought panel rehearing, asking the Court to issue an amended opinion stating that this holding was actually dicta. …

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Categories: guideline, sentencing

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Categories: guideline, sentencing

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Supreme Court to review the scope of the expanded “safety valve.”

Today the Supreme Court granted certiorari in Pulsifer v. United States, No. 22-340, to clarify the First Step Act’s expansion of 18 U.S.C. § 3553(f)’s “safety valve.”

Section 3553(f) permits a district court to sentence a defendant below the otherwise applicable statutory mandatory minimum for federal drug offenses if the defendant meets certain criteria. The 2018 First Step Act expanded this provision.

As relevant here, to be eligible for the safety valve, a defendant must have a limited number of criminal history points. The defendant must “not have–

(A) more than 4 criminal history points, excluding any criminal history points resulting from
a 1-point offense, as determined under the sentencing guidelines;

(B) a prior 3-point offense, as determined under the sentencing guidelines; and

(C) a prior 2-point violent offense, as determined under the sentencing guidelines ….”

The “and” has been a source of confusion.

Several circuits hold the “and” …


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Categories: safety valve, sentencing

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Argument preview: Second Circuit appoints amicus to defend sentence apparently based on defendant’s national origin.

“It has long been settled in this Circuit” that “national origin and naturalized status” cannot be “the basis for determining” a defendant’s sentence. United States v. Arslanouk, 853 F. App’x 714, 720 (2d Cir. 2021) (quoting United States v. Kaba, 480 F.3d 152, 156 (2d Cir. 2007)). The Circuit is thus “compelled” to order resentencing where a district court’s reference to “deter[ring] others sharing that national origin” “create[s] an improper appearance that a defendant’s national origin or immigration status might be driving the choice of sentence.” Id. at 721 (ordering resentencing where district court said sentence would send a “message” that “Russian organized crime that seeks to come to the shores of the United States … will be dealt with, with the power of our criminal justice system”).

In United States v. Vasquez-Drew, No. 20-2195-cr, the district court (Cote, J.) sentenced the defendant, a Bolivian national, to …

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Categories: sentencing

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