Federal Defenders of New York Second Circuit Blog

Yuanchung Lee

Circuit construes supervised-release conditions (restricting or monitoring computer and Internet use) in the defendant’s favor in order to avoid constitutional, statutory, or delegation problems

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In United States v. Victor Kunz, 2d Cir. No. 21-2577-cr (May 23, 2023), Judge Lynch (joined by Judges Livingston and Calabresi) upheld (with one exception) several potentially problematic conditions of supervised release restricting or monitoring Kunz’s computer and Internet usage. Kunz was convicted of CP possession in 2005 and has been on supervised release since … Read more

Davis (2019), voiding the residual clause at § 924(c)(3)(B) for vagueness, is retroactively applicable to cases on collateral review

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Benjamin Hall v. United States, 2d Cir. No. 17-1513 (Jan. 19, 2023), decides a question most of us thought had been answered already – that United States v. Davis, 139 S. Ct. 2319 (2019), striking the residual clause of § 924(c) as unconstitutionally vague, rendered a substantive rule retroactive to cases on collateral review. As … Read more

Court must provide habeas petitioner with notice and an opportunity to respond before sua sponte dismissing the petition on procedural grounds

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In Ethridge v. Bell, 2d Cir. No. 20-1685-pr (Sep. 20, 2022), a Panel of the Court (Lynch, Bianco, and Nardini), in an opinion by Judge Bianco, ruled that the district court erred when it sua sponte dismissed Ethridge’s § 2254 petition, challenging his New York drug and weapons conviction on the ground that state courts … Read more

A sealed sentencing conducted by videoconference, which was not accessible to the public, does not implicate Rule 53’s ban on broadcasting judicial proceedings

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In United States v. Sealed Defendant One, 2d Cir. No. 21-118 (Sep. 21, 2022), a Panel of the Court (Newman, Chin, and Sullivan), in an opinion by Judge Sullivan, principally ruled that a sealed sentencing proceeding, which occurred via Skype videoconferencing during the COVID-19 pandemic, did not violate Rule 53’s bar on the “broadcasting” of … Read more

A district court may consider the defendant’s future earning potential to conclude that the defendant is “non-indigent” and thus subject to the mandatory $5,000 “special assessment” under 18 U.S.C. § 3014(a)

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Section 3014(a) of Title 18, enacted as part of the Justice for Victims of Trafficking Act of 2015 (“JVTA”), requires district courts to impose a $5,000 special assessment on “non-indigent” persons convicted of certain sex- and trafficking-related offenses.1 Carlos Rosario is an indigent person represented by this Office. After he pleaded guilty to three qualifying … Read more

A substance can be an “analogue” of fentanyl for purposes of 21 U.S.C. § 841(b)(1)(B)(vi) — requiring a 5-year minimum sentence where the offense involved “10 grams or more of a mixture or substance containing a detectable amount of any analogue of” fentanyl — even if it does not qualify as a “controlled substance analogue” under 21 U.S.C. § 802(32).

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Torri McCray was charged under 21 U.S.C. § 841(b)(1)(B)(vi) for distributing 10 grams or more of “butyryl fentanyl,” an analogue of fentanyl under the ordinary meaning of the term “analogue.” As Webster’s New Collegiate Dictionary puts it, an “analogue” in the relevant chemistry context is “a chemical compound structurally similar to another but differing often … Read more

District court’s egregious flouting of long-established procedures regarding a jury note and a proposed Allen charge does not constitute “plain error” because its mistakes did not prejudice the defendant

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In United States v. Catherine Melhuish, No. 19-485 (2d Cir. July 27, 2021) (opinion by Judge Nardini, joined by Judges Walker and Wesley), the Circuit rejects the defendant’s argument that the trial judge erred in responding to a jury note and in proposing an Allen charge during deliberations; concludes that 18 U.S.C. § 111, prohibiting … Read more

Panel upholds 40-year prison sentence for Hizballah “sleeper agent” who did not injure anyone or engage in violence; Judge Pooler dissents on the ground that the Guidelines’ terrorism enhancements yield inappropriately high ranges that can result in sentences that, like this one, “shock[] the conscience.”

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Ali Kournai was a “sleeper agent” working on behalf of Hizballah1 and the Islamic Jihad Organization (IJO) in the United States and Canada for over a decade. In United States v. Kourani, No. 19-4292 (2d Cir. July 27, 2021) (opinion by Judge Cabranes, joined by Judge Kearse), the Circuit affirms the judgment below, rejecting Kourani’s … Read more

District court lacks jurisdiction to amend a clerical error in the judgment (under Rule 36) while an appeal is pending from the court’s denial of a prior Rule 36 motion

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In an opinion by Judge Kearse, the Circuit ruled in United States v. Jacques, No. 20-1762(L) (2d Cir. July 26, 2021), that a district court lacks authority under Rule 36 (of the Federal Rules of Criminal Procedure) to correct a clerical error in the judgment while an appeal is pending in the Circuit from the … Read more

Twenty-year term of supervised release neither procedurally nor substantively unreasonable

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In United States v. Joseph Williams, No. 20-1021 (2d Cir. May 26, 2021), a Panel of the Court (Pooler, Sullivan, and Park) ruled in a per curiam opinion that Williams’s 20-year term of supervised release, to follow a 160-month term of imprisonment, was neither procedurally nor substantively unreasonable on plain-error review. Williams argued principally that … Read more