Author Archive | Yuanchung Lee

Thursday, June 2nd, 2016

Defendant Not Eligible for Second § 3852(c)(2) Reduction when New Amendment Does Not Lower the Sentencing Range Determined by Prior Amendment

In United States v. Leroy Derry, Docket No. 15-1829-cr, which was issued yesterday but amended today, the Circuit (by Judge Parker, joined by Judges Pooler and Livingston) ruled as a matter of statutory interpretation that Derry was ineligible for a second sentence reduction under 18 U.S.C. § 3582(c)(2) because the new 2015 amendment (under which he was seeking the second reduction) did not lower the range determined by a prior Guideline amendment in 2011, under which Derry received a lower sentence (though not to the bottom of the amended range), even if this range was lower than the range employed at the original sentencing in 1999.

Here are the essential facts. Derry was convicted in 1998 of multiple offenses, including drug trafficking (crack), racketeering, and murder. When calculating the applicable sentencing range, the Probation Office determined that there were at least three “groups.” The group including the drug trafficking …

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Thursday, May 5th, 2016

District Court Plainly Erred by Using a Guideline Unsupported by the Facts, Even Where the Parties Stipulated to that Guideline in a Plea Agreement

In United States v. Rendsland, Docket No. 14-3942-cr, a summary order issued today, the Circuit ruled that the district court committed plain error in relying on U.S.S.G. § 2A2.2 (“Aggravated Assault”) to calculate Mr. Rendsland’s Guideline range, rather than § 2A2.4 (“Obstructing or Impeding Officers”), even though the parties had stipulated that this was the applicable Guideline in a plea agreement. (Disclosure: Ed Zas of the Federal Defenders of New York submitted an Amicus brief raising this argument on Mr. Rendsland’s behalf). This was so because nothing in the record showed that Mr. Rendsland committed “aggravated assault,” defined in Application Note 1 of § 2A2.2 as a “felonious assault that involved (A) a dangerous weapon with intent to cause bodily injury (i.e., not merely to frighten) with that weapon; (B) serious bodily injury; (C) strangling, suffocating, or attempting to strangle or suffocate; or (D) an …


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Categories: guideline, sentencing findings

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Monday, May 2nd, 2016

Conviction May Be Sustained upon the Uncorroborated Testimony of a Single Accomplice

In United States v. Fernandez et al., Docket No. 14-4158-cr (L), a summary order issued today, the Circuit principally reaffirms the longstanding rule that “a conviction can be sustained on the basis of testimony from a single accomplice, so long as the testimony is not incredible on its face and is capable of establishing guilt beyond a reasonable doubt.” Order at 3 (citing United Sates v. Diaz, 176 F.3d 52, 92 (2d Cir. 1999)). Fernandez’s conviction (for conspiring to commit murder-for-hire, and for using a firearm to commit murder in furtherance of that conspiracy) was secured principally on the testimony of his cousin and co-defendant Darge. Testifying pursuant to a cooperation agreement, Darge told the jury that members of the Minaya drug organization hired him to murder two of its drug suppliers (Cuellar and Flores) for $180,000; that he recruited his cousin Fernandez to help him with the …

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Categories: credibility, sufficiency

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Thursday, April 14th, 2016

Second Circuit Updates – April 14, 2016

Defendant Cannot Benefit on Direct Appeal from Guideline Amendment that Became Effective after His Sentencing if Amendment Is Substantive rather than Clarifying (unless the Commission Determines that the Amendment Should Have Retroactive Effect under § 1B1.10)

In United States v. Miguel Jesurum, No. 14-4464-cr (2d Cir. April 14, 2016), the Court (op. by Pooler, joined by Kearse and Sack) rejects appellant’s argument that (1) the sentencing court erred in finding that the offense “involved more than 250 victims,” which led to a 6-level enhancement under the 2014 version of U.S.S.G. § 2B1.1(b)(2)(C); and (2) he should receive the benefit of a 2015 amendment to the same Guideline, which became effective after his sentencing and which now calls for the same enhancement only where the offense “resulted in substantial financial hardship to five or more victims.”

The first argument fails under the plain language of Commentary to the Guideline. Application …

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Friday, March 11th, 2016

Two Summary Orders on Search and Seizure

No published opinions today; only two summary orders (from the same panel of Katzmann, Sack, and Lohier) rejecting Fourth and Fifth Amendment challenges by the defendant.

In United States v. Mohammed Aleem, No. 15-186, the Court rejected appellant’s argument that evidence obtained by the Royal Canadian Mounted Police (RCMP), and later used in his prosecution, should have been suppressed because RCMP officers were acting as agents of the U.S. Border Patrol (and because their actions otherwise violated the Fourth Amendment). Relying on United States v. Getto, 729 F.3d 221, 227 (2d Cir. 2013), the Court ruled that “to render foreign law enforcement officials virtual agents of the United States, American officials must play some role in controlling or directing the conduct of the foreign parallel investigation”; “it is not enough that the foreign government undertook its investigation pursuant to an American . . . request.” Order at 3.…


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Categories: Fifth Amendment, Fourth Amendment

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Wednesday, March 9th, 2016

The Modified Plain-Error Standard Lives to Fight Another Day

United States v. Joseph Ray Jordan, No. 14-79-cr (Summary Order of March 9, 2016) (Sack, Chin, Lohier):

The Circuit did not issue a published decision today. However, one summary order today warrants discussion on the issue of plain error.

Defendant Jordan raised a number of issues on appeal, but the Court addressed only one in its summary order: Whether the trial judge’s instruction to the jury on the § 875(c) count (making threatening interstate communications), given before the Supreme Court’s decision in Elonis v. United States, 135 S. Ct. 2001 (2015), and erroneous in light of that subsequent decision, warrants a new trial. The judge had told the jury that it could convict Jordan even if he did not “intend[] the communication [he] transmitted to be threatening.” Though this was correct under then-governing law in the Circuit, Elonis subsequently ruled that a conviction under § 875(c) requires more …

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Saturday, April 7th, 2007

DNA Search of Non-Violent Probationers Upheld

United States v. Amerson, Docket No. 05-1423-cr (2d Cir. Mar. 29, 2007) (Calabresi, Katzmann, B.D. Parker, C.JJ.): In this case, the Court upholds, against a Fourth Amendment challenge, the federal program of DNA testing, to which prisoners, those on supervised release, and probationers are subject, as applied to probationers convicted of non-violent crimes. On its face, such a program faces a Fourth Amendment obstacle, since it constitutes a search without any suspicion of wrongdoing, much less probable cause, a search that is ordinarily unreasonable. The Court follows its previous decisions in Roe v. Marcotte, 193 F.3d 72, and Nicholas v. Goord, 430 F.3d 652, in holding that the proper Fourth Amendment test to apply to such a case is the “special needs” test rather than a “reasonableness” test evaluated on the totality of the circumstances. That test, as applied by the Supreme Court, has required …

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Thursday, April 5th, 2007

Telephone Informant Who Gives Her Name and Phone Number to the Police Is … er, Not “Anonymous”

United States v. Elmore, Docket No. 05-1734-cr(L) (2d Cir. Mar. 29, 2007) (Pooler, Raggi, Sand): This case makes me want to practice in the District of Connecticut. Here, the district court ruled that a Terry stop of the defendant’s vehicle (resulting in the subsequent recovery of a firearm) was not supported by reasonable suspicion because the informant who supplied the tip leading to the stop of the car was (1) “anonymous” and (2) had not given sufficient “predictive information” to justify the stop under cases such as Florida v. J.L., 529 U.S. 266 (2000). The district court categorized the informant as anonymous even though she called a police detective and gave him (1) her full name (“Dorothy Mazza”) (2) cell phone number, and (3) home phone. Op. 3. But while the detective was able to call the informant back on the cell phone number she provided (thus …

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Monday, March 12th, 2007

Sentence Based on District Court’s Desire to Deter Others from Defendant’s Ethnic Community Vacated

United States v. Kaba, Docket No. 05-3813-cr (2d Cir. Mar. 8, 2007) (Walker, Sack, Wesley): In this case, the government urged, in support of the proposed sentence, that the defendant came from a tightly-knit West African community, and that a stiff sentence would deter her countrymen here and elsewhere in the world from engaging in drug crimes. The district court essentially adopted this rationale for its sentence. It noted initially, and sensibly, that general deterrence was rarely a big factor in setting a sentence, but went on to adopt the government’s notion that in this case, because of the defendant’s origins, its sentence would serve to deter those of her nationality. The defendant appealed, arguing that it was impermissible to base her sentence on her national origin, and the Circuit agreed.

The Circuit found the case indistinguishable from United States v. Leung, 40 F.3d 577 (2d Cir. …

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