Archive | 3553(c)

Tuesday, September 3rd, 2019

Second Circuit affirms convictions arising from a person’s alleged attempt to join ISIS in Syria. But it vacates consecutive prison sentences (of 420 months) as procedurally unreasonable because of the judge’s deficient statement of the reasons for the sentence.

Second Circuit affirms convictions arising from a person’s alleged attempt to join ISIS in Syria.  But it vacates consecutive prison sentences (of 420 months) as procedurally unreasonable because of the judge’s deficient statement of the reasons for the sentence: United States v. Pugh, No. 17-1889-cr, __F.3d__, 2019 WL 4062635  (Aug. 29, 2019). 

In United States v. Pugh, the Second Circuit rules (against the defendant) on the marital communications privilege. And it finds there was sufficient evidence of an “attempt” to provide material support to a foreign terrorist organization (18 U.S.C. § 2339B(a)(1)), and of obstruction and attempted obstruction of an official proceeding (18 U.S.C. § 1512(c)(1) and (c)(2)).

The Circuit does, however, vacate the (consecutive) sentence because of the inadequacy of the Judge’s explanation. In addition, a separate concurring opinion explicates concern about the overuse of obstruction of justice charges. Pugh, 2019 WL 2019 WL 4062635 at …

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Categories: 3553(c), evidence, marital communications privilege, Material Support, material support statute, obstruction of justice, official proceeding, sentencing, terrorism

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Tuesday, May 14th, 2019

Jenkins II: Circuit Vacates and Remands Child Pornography Sentence, Again

You may remember that, back in April 2017, the Second Circuit vacated a 225-month sentence for a person convicted of the possession and transportation of child pornography as “shockingly high.” In Jenkins I, the Circuit wrote an extensive opinion, chock-full of quotable portions for sentencing memos and appeals, about why the child pornography guidelines can produce “unreasonable results.”

On remand, however, the district court resentenced Mr. Jenkins to 200 months of imprisonment – still an exceedingly long sentence for a first conviction.

On Friday, the Circuit reversed again, this time sending the case to a new district judge. Although Jenkins II is a summary order, it still has potentially useful language about why it is error for a district court to rely on studies or statistics about people convicted of child pornography offenses as a reason to believe that a particular person committed a prior “undetected” offense. As the …

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Categories: 3553(c), child pornography

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Friday, February 9th, 2018

VOSR Sentence Declared Procedurally Unreasonable on Plain Error Review

It’s been a slow week for the Second Circuit, but today it issued a summary order reversing a sentence for violations of supervised release as procedurally unreasonable. This holding is unremarkable in light of the district court’s failure to articulate any specific reasons for the defendant’s above-Guidelines sentence. Somewhat notable, however, is the panel’s discussion of why the sentence is reversible under plain error review. The summary order in United States v. Kalaba, No. 17-328 (Katzmann, Pooler, Droney) (appeal from Preska, J., SDNY), is available here.

While on supervised release, Mr. Kalaba was arrested and indicted for several counts relating to a narcotics distribution conspiracy. He was sentenced to 84 months’ imprisonment after pleading guilty to one count and being convicted of the others at trial. While awaiting trial, the Probation Office submitted a report charging four violations of supervised release. Two violations were established by the narcotics …

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Categories: 3553(c), plain error, procedural reasonableness, supervised release

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Monday, August 28th, 2017

Second Circuit Vacates Sentence Based on Erroneous PSR

Today, in United States v. Genao, the Second Circuit vacated an illegal reentry sentence as procedurally unreasonable where the sentencing court relied on a factually erroneous presentence investigation report (PSR) to calculate the defendant’s Guidelines range. The opinion is notable both for its analysis of whether an offense under the New York burglary statute is a “crime of violence” and its determination that the district court failed to satisfy § 3553(c)’s requirement that it provide reasons for its sentence in open court.

You can access the opinion here.

Roman Bartolo Genao was convicted of illegal reentry, and had previously been convicted in New York state of first-degree robbery and first-degree burglary. At the time of Genao’s sentencing, the Guidelines imposed a 16-level enhancement for illegal reentry sentences where the defendant had previously been convicted of a “crime of violence.” (This Guideline has since been revised to impose enhancements based …

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Categories: 3553(c), Johnson, plain error, procedural reasonableness, sentencing

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Saturday, January 19th, 2008


Two recent cases provide some guidance on the requirement in 18 U.S.C. § 3553(c) that the district court state in “open court” its reasons for imposing a particular sentence.

1. United States v. Day, No. 05-4285-cr (2d Cir. January 15, 2008) (Jacobs, Pooler, Sack, CJJ) (per curiam) is particularly shocking. Day was originally sentenced to fifteen years’ imprisonment, after having been convicted of one offense with a ten-year mandatory minimum and one with a five-year mando. In 2006, the circuit, in a summary order, vacated the sentence because it appeared from the record that Judge Platt erroneously believed that the two minima had to run consecutively.

On remand, Judge Platt, without notice to anyone, and in the absence of Day and his counsel, filed an order resentencing him to the same 180-month sentence. The circuit reversed, naturally, holding that the district court violated Day’s constitutional right to be present at …

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Categories: 3553(c), Uncategorized

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