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Author Archive | Yuanchung Lee

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

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Friday, October 11th, 2019

Internally inconsistent verdict on a single count (involving a single defendant) requires dismissal

It is long settled that inconsistency between or among counts of conviction is not a ground for dismissal. See, e.g., Dunn v. United States, 284 U.S. 390, 393 (1932); and United States v. Powell, 469 U.S. 57, 61-69 (1984). The same rule applies to jury verdicts that are inconsistent as to different defendants in a joint trial. See United States v. Dotterweich, 320 U.S. 277, 279 (1943). As the Supreme Court broadly stated in Rivera v. Harris, 454 U.S. 339, 345-46 (1981), the jury possesses “the unreviewable power [] to return a verdict of not guilty for impermissible reasons” and “[i]nconsistency in a verdict is not a sufficient reason for setting it aside.”

None of those cases, however, concerned a verdict that is internally inconsistent as to the same count and the same defendant. The Second Circuit recently encountered that situation in United States v. Janine …

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Categories: charge, jury, jury charge, jury trial, verdict

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Wednesday, July 24th, 2019

Is attempted Hobbs Act robbery a “crime of violence” for purposes of § 924(c) after Davis?

In the Second Circuit, a substantive Hobbs Act robbery qualifies as a “crime of violence” for purposes of § 924(c) under its elements (or force) clause, § 924(c)(3)(A). See United States v. Hill, 890 F.3d 51 (2d Cir. 2018). But a conspiracy to commit Hobbs Act robbery does not qualify as a crime of violence for purposes of § 924(c), because United States v. Davis, 139 S. Ct. 2319 (June 24, 2019), invalidated the residual clause of § 924(c)(3)(B) as unconstitutionally vague (and a conspiracy does not qualify under the elements clause).

That leaves the question of whether attempted Hobbs Act robbery qualifies as a § 924(c) crime of violence after Davis. The Second Circuit has not answered this question — i.e., whether attempted Hobbs Act robbery “has as an element the use, attempted use, or threatened use of physical force against the person or property …

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Categories: 924(c), crime of violence, Hobbs Act

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Friday, June 7th, 2019

Let’s wait a bit on the non-delegation argument …

The Circuit today affirmed the defendant’s conviction in United States v. Michael O’Brien, which principally rejects, on fact-specific credibility grounds, his 4th and 5th Amendment arguments concerning Miranda and an alleged consent to search. Judge Kearse’s typically thorough opinion lays out the details; no legal ground is broken.

The only issue of note is the Court’s rejection of O’Brien’s additional claim that the substance he was accused of distributing — methylone (a.k.a. Molly) — was improperly placed on the federal list of controlled substances. O’Brien argues that Congress unconstitutionally delegated its legislative power by authorizing the Attorney General (who in turn re- or sub-delegated that authority to the D.E.A.) to determine whether a substance belongs on the federal schedule of controlled substances.

Judge Kearse rejected this argument on procedural and substantive grounds. First, it was untimely because he did not make this argument until after he was convicted. …

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Categories: Uncategorized

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Monday, June 3rd, 2019

Pretrial detention later credited against a term of imprisonment imposed upon conviction tolls period of supervised release under § 3624(e)

Section 3624(e) of Title 18 of the U.S.C. provides that “[a] term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime unless the imprisonment is for a period of less than 30 consecutive days.” The question sometimes arises as to whether pretrial detention similarly tolls the term of supervised release. Although pretrial detention is not, on first look, a “period in which the person is imprisoned in connection with a conviction” for a crime, things look murkier when considered retrospectively. This is because courts often, upon the defendant’s subsequent conviction for the offense for which he was detained pretrial, credit that period of detention against the term of imprisonment ultimately imposed. Indeed, § 3585(b) requires such credit in federal cases.

Today the Supreme Court ruled in Mont v. United States, Sup. Ct. …

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Categories: supervised release

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Supreme Court to decide whether plain-error review applies when defendant does not object to sentence as substantively unreasonable at sentencing

Today the Supreme Court granted cert. in Holguin-Hernandez v. United States, S. Ct. No. 18-7739, to resolve the earth-shattering question of whether plain-error review applies to an appellate claim of substantive unreasonableness (i.e., “The sentence is too damn long!”) when defense counsel did not object to the sentence’s unreasonableness at sentencing. The case comes out of the 5th Circuit, the only Circuit to apply plain-error review in this situation. Eight Circuits have held that a post-sentence objection is not required to invoke regular ol’ “substantive reasonableness” review (i.e., abuse of discretion review) on appeal. The Second Circuit has dodged this question, concluding every time that it need not resolve the issue because the challenged sentence is proper even under ordinary reasonableness review. See, e.g., United States v. Nesbitt, 757 F. App’x 13, 14 (2d Cir. Nov. 26, 2018).

 

As we breathlessly await The Nine’s …

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Categories: plain error, Rule 52, substantive reasonableness

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Thursday, October 20th, 2016

Bribery Convictions Affirmed Notwithstanding McDonnell Error

In United States v. Vincent Tabone and Malcolm Smith, Docket Nos. 15-2351 (L) & 15-2433 (Con), the Court (Newman, Lynch & Droney) in a summary order affirmed the convictions of both defendants, thus concluding (at least at the Circuit level) the saga of Democrat Malcolm Smith’s attempt to run for Mayor of New York City as the Republican Party nominee by way of a “Wilson-Pakula Certificate,” which can be issued upon the approval of at least three of the five Republican Party chairs representing the five NYC boroughs (co-appellant Tabone was the de facto head of the Queens Republican Party). Earlier this year, the Court affirmed the conviction of another member of this scheme. See United States v. Daniel Halloran, 821 F.3d 321, 337 (2d Cir. 2016). As discussed below, the Panel here relies on Halloran to dispose of many of the appellants’ claims. The only issues worth …

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Wednesday, October 19th, 2016

Sooner or Later, the Career Offender Guideline Will Get You

In United States v. Anthony Lewis, Docket Nos. 15-3245-cr (L) & 15-3307-cr (CON), an unpublished summary order, the Court (Calabresi, Livingston & Rakoff (by designation)) rejected two appeals by Mr. Lewis from two denials of two § 3582(c)(2) motions for a reduced sentence based on two retroactively applicable Guideline amendments, one in 2010 and the other in 2014. The case is of interest principally for demonstrating the see-saw application of the Career Offender Guideline vis-a-via the Drug Guideline (§ 2D1.1) in the context of § 3582(c)(2) motions.

Mr. Lewis was originally sentenced in 2004. Under the drug table in § 2D1.1, his total offense level (based on distributing 1.5 KG or more of cocaine base) was 37, and at Criminal History Category VI, the range was 360 months to life. He also qualified as a Career Offender under § 4B1.1, but that determination resulted in a total offense …

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Categories: 3582(c)(2), career offender

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Tuesday, August 30th, 2016

Existence of “Second or Subsequent” § 924(c) Conviction Remains a Mere “Sentencing Factor” after Allyne

In United States v. Boykin, Docket Nos. 14-851-cr & 14-1033-cr, the Court (Walker, Calabresi, Hall) in a per curiam opinion rejected defendant Simmons’s argument that under Allyne v. United States, 133 S. Ct. 2151 (2013), the fact of whether he had a “second or subsequent” conviction under 18 U.S.C. § 924(c) (for using or carrying a firearm during either a crime of violence or a drug trafficking offense), which triggers an enhanced mandatory consecutive sentence of 25 years, must be submitted to and found by a jury. The Court thus re-affirmed United States v. Anglin, 284 F.3d 407 (2d Cir. 2002), which held that the existence of a “second or subsequent” § 924(c) conviction is a mere sentencing factor, falling under the Almendarez-Torres exception (523 U.S. 224 (1998)) to the rule of Apprendi (530 U.S. 466 (2000)), and thus need not be submitted to or found by …

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Categories: 924(c)

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