Federal Defenders of New York Second Circuit Blog

Yuanchung Lee

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

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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 … Read more

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

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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) — … Read more

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

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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 … Read more

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.

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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 … Read more

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

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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 … Read more

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.

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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, … Read more

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.

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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 … Read more

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.

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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 … Read more

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

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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 … Read more

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

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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 … Read more