Author Archive | Yuanchung Lee

Tuesday, May 25th, 2021

Circuit strikes a special condition of supervised release requiring the defendant to participate in a “restorative justice program” as vague and as delegating judicial authority to the Probation Office

In United States v. Patrick W. Carlineo, 2d Cir. No. 20-1020 (May 25, 2021), a Panel of the Court (Parker, Lohier, and Menashi) invalidated a special condition of supervised release requiring the defendant to “participate in a program known as the Partners in Restorative Initiatives” as too vague and as delegating too much authority to the Probation Office. Judge Parker’s opinion does not invalidate all such conditions. Rather, the takeaway is that if a district judge wishes to impose a restorative-justice-related condition of supervision, the judge must specify the details of the program — preferably one vetted by the Probation Office — and indicate specifically what the defendant must do to satisfy the condition and avoid violation.

Carlineo pleaded guilty to threatening Congresswoman Ihlan Omar and to possessing a gun after a felony conviction. Before sentencing, the district court received an unsolicited letter “from Will Bontrager, who identified himself …

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Categories: supervised release

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Categories: supervised release

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The Supreme Court throws a wrench into § 1326(d) motions in the Second Circuit

In United States v. Palomar-Santiago, No. 20-437 (May 24, 2021), Justice Sotomayor ruled for a unanimous Court that as a matter of statutory interpretation (1) each of 8 U.S.C. § 1326(d)’s three requirements must be satisfied; and that (2) a showing by the defendant that the deportation proceeding was “fundamentally unfair” under § 1326(d)(3) — because the immigration judge (IJ) mistakenly told him that he was removable as an aggravated felon due to his DUI conviction (this became error six years later in Leocal v. Ashcroft, 543 U.S. 1 (2004), holding that a DUI is not a § 16(b) “crime of violence” and thus not an “aggravated felony”) – does not suffice to dismiss a reentry indictment. The decision overrules Ninth Circuit law holding that “defendants are ‘excused from proving the first two requirements’ of § 1326(d) [– noncitizen defendants must show that they exhausted administrative remedies and …


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Categories: aggravated felony, crime of violence, deportation

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Wednesday, February 24th, 2021

SCOTUS will review the ACCA’s “committed on occasions different from one another” requirement – so object, object, object

Earlier this week the Supreme Court granted cert. in Wooden v. United States, SCOTUS No. 20-5279, which concerns the interpretation of the ACCA’s requirement that each of the three required prior convictions arise from offenses “committed on occasions different from one another . . . .” 18 U.S.C. § 924(e)(1). The Court will likely resolve a Circuit split on whether mere temporal distinctness between two offenses suffices to satisfy the requirement of separateness, or whether a broader inquiry is necessary.1

In Mr. Wooden’s case, the Sixth Circuit ruled that his burgling of 10 different units at the same Georgia mini-storage facility, one after another, which resulted in a guilty plea to 10 counts of burglary more than twenty years ago, constituted 10 separate burglaries for purposes of the ACCA, even though everything occurred at the same location over a short period of time. Several Circuits agree with the …

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Categories: ACCA

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Tuesday, February 23rd, 2021

Circuit affirms convictions of Dean and Adam Skelos, concluding than a McDonnell error in the court’s charge to the jury was harmless beyond a reasonable doubt.

In United States v. Dean Skelos and Adam Skelos, 2d Cir. Nos. 18-3421 & 18-3442 (Feb. 23, 2021), a panel of the Court (Walker, Sack, and Carney) affirms the Skeloses’ convictions, following a 2018 retrial, for various public-corruption and bribery related offenses (Dean Skelos was the Majority Leader of the New York State Senate and Adam Skelos is his adult son). Their earlier convictions, following a 2015 trial, had been vacated in light of the Supreme Court’s decision in “McDonnell v. United States, 136 S. Ct. 2355 (2016), which narrowed the definition of the ‘official act’ that a public official must exchange for benefits in order to be convicted of Hobbs Act extortion or honest services fraud, where those crimes have been defined by reference to the term ‘official act’ in the federal bribery statute, 18 U.S.C. § 201. Because the McDonnell definition conflicted with the broader …

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Categories: bribery, corruption, Hobbs Act

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Categories: bribery, corruption, Hobbs Act

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District court must make clear, specific finding that defendant committed perjury before imposing the 2-level obstruction enhancement based on trial testimony.

In United States v. Ivan Rosario, 2d Cir. No. 18-1994 (L) (Feb. 23, 2021) (per curiam), the Court (Sack, Chin, and Lohier) reaffirmed the longstanding rule that a district court may impose a 2-level obstruction enhancement under U.S.S.G. § 3C1.1, based on the defendant’s allegedly false trial testimony, only if it “make[s] findings to support all the elements of a perjury violation in the specific case,” namely, “that the defendant (1) willfully and (2) materially (3) committed perjury, which is (a) the intentional (b) giving of false testimony (c) as to a material matter.” Op. 6 (quoting United States v. Dunnigan, 507 U.S. 87 (1993) and United States v. Thompson, 808 F.3d 190 (2d Cir. 2015)). This “rigid requirement of fact-finding” ensures “that courts will not automatically enhance sentences whenever the accused takes the stand and is thereafter found guilty.” Op. 5-6. Because “[a]ny sentence …


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Categories: obstruction of justice, perjury

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Thursday, September 10th, 2020

Federal law barring false voter registrations applies to town election because New York’s “unitary registration scheme” allows a falsely registered voter to vote in future federal elections. And the Travel Act’s bar on “bribery” is not limited to acts involving public officials (as payees) and encompasses a New York law barring payments to voters.

In United States v. Smilowitz, 2d Cir. No. 19-361 (Sep. 8, 2020), a panel of the Court (Walker, Parker, and Carney) ruled that the defendant’s conduct of falsely registering voters for a town election, and of offering payment to voters for their votes in that election, fell within the reach of the federal election law, 52 U.S.C. § 10307, and qualified as “bribery” under the Travel Act, 18 U.S.C. § 1952(b). Here are the essential facts.

Smilowitz owned part of a real-estate development in Bloomingburg, New York, population 420. It had a mayor and two trustees.

In 2013 those officials voted against a measure that would have benefitted Smilowitz and several other real-estate developers. Hoping to overturn that decision, Smilowitz and his confederates tried to influence the 2014 election and replace the local officials with candidates amenable to them.

The conspirators did several things giving rise to this prosecution. …

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Categories: bribery

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Thursday, August 6th, 2020

Rehaif claim cannot be brought in second or successive § 2255 motion because the decision involved statutory interpretation and did not render a “constitutional” rule as required by AEDPA’s gatekeeping provision.

In Mata v. United States, 2d Cir. No. 20-1875, a panel of the Court (Park, Nardini, and Menashi) held in a per curiam opinion that federal prisoners cannot rely on the Supreme Court’s decision in Rehaif v. United States, 139 S. Ct 2191 (2019), to challenge their underlying conviction or sentence in a second or successive § 2255 motion. This is so because while § 2255(h)(2) requires that a successive motion be based on (among other things) “a new rule of constitutional law,” Rehaif’s holding – that 18 U.S.C. § 922(g) requires proof that the defendant knew that s/he fell within a relevant class barred from possessing a gun – was a matter of statutory interpretation and not based on the Constitution.…

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Categories: 2255, Rehaif

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Categories: 2255, Rehaif

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Tuesday, August 4th, 2020

District court erred in relying on uncharged conduct to select the applicable Guideline provision, and the error is not harmless despite the court’s claim that it would have imposed the same sentence under the correct Guideline.

In United States v. Huberfeld, 2d Cir. No. 19-436 (L), the Court (opinion by Judge Pooler, joined by Judges Lynch and Menashi) vacated both a 30-month sentence and a $19 million order of restitution for basically the same reason – the district court erred in relying on uncharged criminal conduct, beyond and broader than what the defendant actually pleaded guilty to via a negotiated information and plea agreement, in selecting the applicable Guideline provision and awarding restitution. The Court also found that the Guideline-selection error is not harmless, despite the district court’s claim that it would’ve imposed the same 30-month sentence under the correct Guideline, because under the circumstances here, the Court was not “confident” that the incorrect range did not “clearly” affect the court’s selection of the ultimate sentence.

Here’s the factual gist. Huberfeld solicited investments for Platinum Partners, a hedge fund. He spoke to co-conspirator Jona Rechnitz, …


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Categories: bribery, guideline, restitution, Uncategorized

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Tuesday, June 9th, 2020

District Court Erred in Denying 3rd Point for Acceptance of Responsibility, Despite a Government Motion on the Defendant’s Behalf, Based on Its Belief that the Defendant’s Suppression Motion Caused the Government to Do Work that Overlapped with Trial Preparation

Reading a 45-page opinion about the “third point” in the acceptance-of-responsibility Guideline, U.S.S.G. § 3E1.1(b), makes one wonder whether Booker was but a dream. Why, one might ask, do judges in 2020 care so much about a miniscule adjustment to the offense level when they can simply go outside the advisory range and impose whatever sentence they believe just under the circumstances? Perhaps numbers comfort those tasked with punishing their fellow humans without the security blanket of mandatory directives. Who knows.

That beef aside, this is a fine opinion by Judge Lynch – thorough, well-written, and well-reasoned as always. In United States v. Marilyn Vargas, No. 19-463, __ F.3d __ (2d Cir. June 9, 2020), the Court held that District Judge Caproni erred in denying the 3rd acceptance point following the defendant’s guilty plea, despite a Government motion on the defendant’s behalf, based on her view that the …


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Categories: acceptance of responsibility

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Monday, June 8th, 2020

New York Fifth-Degree Drug Sale Does Not Qualify as “Felony Drug Offense” for Purpose of § 851 Recidivist Enhancement

In United States v. Jeremy Thompson, 2d Cir. No. 18-2545, __ F.3d ___ (2d Cir. June 8, 2020), the Court held (in an opinion by Judge Walker) that a New York conviction for fifth-degree criminal sale of a controlled substance, in violation of N.Y. Penal Law § 220.31, does not qualify as a “prior conviction for a felony drug offense” for purposes of the recidivism enhancement in 21 U.S.C. § 851 under Taylor’s now-familiar categorical approach. This is so because, as the Court previously held in Harbin v. Sessions, 860 F.3d 58 (2d Cir. 2017), this New York law (1) is indivisible and (2) regulates a broader range of controlled substances than the analogous federal drug schedule. In particular, while § 220.31 criminalizes the sale of HCG (a pregnancy hormone), federal law does not. And because fifth-degree sale is indivisible, it is irrelevant that court documents show …


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Categories: First Step Act of 2018

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Tuesday, November 26th, 2019

Factual basis for § 924(c) plea insufficient where proffer showed only that defendant “possessed the gun while simultaneously engaging in [] drug trafficking” and did not establish “specific nexus” between gun and drug-trafficking offense necessary for “in furtherance” element

In United States v. Luis Rosario, a summary order, the Circuit vacated a guilty plea to a § 924(c) count, charging Mr. Rosario with possessing a firearm in furtherance of a drug-distribution conspiracy, on the ground that the factual basis for his plea was insufficient. The essential facts are that Mr. Rosario participated in a drug conspiracy for about two months; that he occasionally used a white van during this time frame; and that a gun was later found inside the van. After arrest, Mr. Rosario said that he “carries the gun for protection.”

These were the only facts on the record when Mr. Rosario pleaded guilty. But as the Court summarized, “th[is] evidence . . . established only that Rosario possessed the gun while simultaneously engaging in a drug-trafficking conspiracy” and did not show a ‘specific nexus’ between the gun and the drug-trafficking offense . . . [as] …


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Categories: 924(c), guilty plea, Rule 11, Uncategorized

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