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Archive | 3553(a)

Tuesday, July 20th, 2021

Second Circuit holds that the district court is not required to consider the sentencing factors of 18 U.S.C. §3553(a) in deciding whether to reduce a sentence under §404 of the First Step Act.

In United States v. Moyhernandez, No. 20-625 (2d Cir. July 15, 2021), a split panel of the Second Circuit held that a district judge need not consider the sentencing factors of section 3553(a), deepening a Circuit split. (Jacobs, Park in the majority, Pooler dissenting) The district court denied defendant’s motion for a reduction in a 360-month sentence for a conspiracy to distribute crack cocaine, after concluding that he was eligible for relief under the First Step Act.

The original sentence was imposed under the mandatory career offender guideline and the sentencing judge made clear at the time that he would have imposed a lower sentence if not for the mandatory guideline. In the defendant’s  motion for a  reduced sentence, he urged the new judge to consider the §3553(a) factors and exercise her discretion to impose a lower sentence. In denying the motion because of the defendant’s lengthy record …

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Categories: 3553(a), First Step Act

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Categories: 3553(a), First Step Act

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Tuesday, June 8th, 2021

Government Did Not Act Unconstitutionally or in Bad Faith by Refusing to Make “Substantial Assistance” Motion Under § 3553(e).

In United States v. Trimm, No. 20-2264 (2d Cir. June 2, 2021) (per curiam) (Livingston, Jacobs, and Menashi), the Second Circuit held that the district court erred in concluding that the government’s refusal to make a “substantial assistance” motion under 18 U.S.C. § 3553(e) was unconstitutional and motivated by bad faith. Accordingly, the Court vacated the defendant’s sentence and, to preserve the appearance of justice, remanded for resentencing before a different judge.

Pursuant to a plea agreement, Trimm pleaded guilty to conspiracy to use a minor to produce child pornography. Trimm also agreed to assist the government in securing the conviction of her co-conspirator. The agreement vested in the government sole discretion to determine whether and how to credit Trimm’s cooperation, including whether to file a “substantial assistance” motion under U.S.S.G. § 5K1.1, § 3553(e), or both.

After evaluating Trimm’s assistance, the government decided to make a motion under …

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Wednesday, August 19th, 2020

Circuit Vacates LWOP Sentence Based On Inadequate Consideration Of Juvenile Offender’s Age

In United States v. Delgado, the Circuit (Pooler, joined by Jacobs and Carney) vacated a life sentence imposed on a 17-year-old convicted of two murders, on the ground that the district court had failed to give the requisite consideration to the defendant’s age, as required by Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 136 S. Ct. 718 (2016).

Delgado was a gang member in Buffalo. A rival gang shot and injured Delgado’s brother. In retaliation, Delgado attacked members of the rival gang, but wound up shooting and killing two bystanders instead. He was 17 at the time. After a jury trial, Delgado was convicted of multiple offenses arising from his long-term gang membership, including RICO conspiracy (predicated in part on the murders), drug conspiracy, and § 924(c). The district court (Arcara, WDNY) sentenced him to life.

The Circuit vacated the life sentence. The …

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Categories: 3553(a), 924(c), Batson, bruton, RICO

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Monday, March 9th, 2020

The evidence sufficiently proved the defendant “had a reasonable opportunity to observe” the underage victim, under 18 U.S.C. § 1591(b)(1) (sex trafficking of minors). And it wasn’t procedural error when the court used the defendant’s “false [trial] testimony” as an aggravating factor under § 3553(a) — in imposing a substantially below-Guidelines sentence — without finding the testimony qualified as perjury under Guidelines § 3C1.1. United States v. Almonte, No. 18-3769, __F.3d__, 2020 WL 1056786 (March 5, 2020).

1. Sufficiency of evidence of sex trafficking involving underage victim

The defendant was convicted, after trial,  of several offenses, including  sex trafficking of a minor who was less than 14 years old, in violation of 18 U.S.C. § 1591(a) and (b)(1).  She moved unsuccessfully for a judgment of acquittal (Fed.R.Crim.P. 29), arguing the evidence didn’t  establish she “had a reasonable opportunity to observe” the underage victim as required by 18 U.S.C. § 1591(c).  The Circuit affirms the district court’s denial of the Rule 29 motion. Almonte, 2020 WL 1056786 at *1.

Section 1591(c) states that in a prosecution for sex trafficking under § 1591(a)(1), “in which the defendant had a reasonable opportunity to observe the [underage victim] . . ., the Government need not prove that the defendant knew, or recklessly disregarded the fact, that the person had not attained the age of 18 years.” 18 U.S.C. § 1591(c). …

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Categories: 3553(a), obstruction of justice, procedural reasonableness, sex offenses, substantive reasonableness

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