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Wednesday, June 3rd, 2020

The Second Circuit vacates and remands for resentencing because of the erroneous application of the Sentencing Guidelines enhancements for possessing a “dangerous weapon” (§ 2B3.1, cmt. n.2) and “physical restraint” (§ 2B3.1(b)(4)(B)) – – which increase the offense level for robbery offenses. United States v. Taylor, No. 18-1710,  __F.3d__, 2020 WL 2745536  (May 27,  2020). 

In United States v. Taylor, the Circuit interprets two provisions of the Sentencing Guidelines that increase the offense level for robbery. It concludes that the sparse facts “set forth in the Presentence Report (PSR), upon which the district court relied at sentencing, are insufficient to support the application of either enhancement.” 2020 WL 2745536 at *1.

First, the Circuit holds that a defendant’s “hand” doesn’t become an “object” qualifying for the “dangerous weapon” enhancement when he gestures (with his hand) that he has a gun in his belt, but he’s actually unarmed and doesn’t have an object that “resembles” a gun. See U.S.S.G.§ 2B3.1(b)(2)(E).

Second, on the physical restraint enhancement, the Circuit holds that a robber’s act of ordering  a person to move from one room into another room — without actually retraining the person or locking the person in a room — doesn’t qualify as “physical[] restrain[t]” under …

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Categories: breach, guideline, robbery

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Categories: breach, guideline, robbery

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Thursday, September 19th, 2019

Second Circuit vacates and remands for fact-finding on claim the government breached a plea agreement by its oral representations during plea negotiations, despite the agreement’s “merger clause” (saying the written agreement is “the total agreement” between the parties). United States v. Feldman, Nos. 17-2868-cr, 17-2869-cr,  __F.3d__, 2019 WL 4419378  (Sept. 17,  2019). 

In United States v. Feldman, an opinion authored by Judge Pierre Leval, the Circuit addresses the government’s obligations under a plea agreement based on oral representations “made by the government to the defendant in the course of plea negotiations[.]” 2019 WL 4419378 at *1.

The defendant in this case wasn’t seeking vacatur of his guilty plea. He sought rather to vacate and stay a writ of execution that the government obtained to seize his retirement account and use for restitution. But the government had made representations during plea negotiations indicating the retirement account would be safe. The district court denied the defendant’s motion to vacate and stay the writ of execution on the account. The Circuit, however, vacated the district court’s order denying the defendant’s motion, and remanded for “factfinding and reconsideration of Feldman’s motions.” The Opinion provides an important discussion of the government’s obligations concerning plea agreements.

Facts…

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Categories: breach, plea agreement

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Categories: breach, plea agreement

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Saturday, June 14th, 2008

Breach Blanket Bingo

United States v. Bell, No. 07-0715-cr (2d Cir. June 10, 2008) (Jacobs, Calabresi, Sack, CJJ) (per curiam)

In this case, the circuit had to sift through competing claims as to which party breached the plea agreement.

Defendants Brumer and Klein pled guilty to various offenses relating to healthcare fraud. Their agreements with the government stipulated to a loss amount, and specified that neither party would seek a departure or adjustment other than those contained in the agreement. Based on the proof at a related trial, however, the government offered to amend the agreement and reduce the loss amount. The defendants rejected this offer, and instead sought a Fatico hearing, after which the court held them accountable for a significantly lower loss amount. In exchange, the government sought adjustments for mass marketing and vulnerable victims that were not part of the plea agreement.

So who breached first? The defendants. According to …

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Categories: breach, right to counsel, Rule 11, Uncategorized

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Wednesday, December 26th, 2007

Breach Baby

United States v. Griffin, No. 05-4106-cr (2d Cir. December 21, 2007) (Pooler, Sack, Wesley, CJJ)

In this case, a divided panel concluded that the government breached its plea agreement in a child pornography case by twice suggesting that the defendant might not be entitled to a downward adjustment for acceptance of responsibility.

Facts: Defendant Michael Griffin pled guilty to possessing child pornography by using the file-sharing service Kazaaa. His plea agreement left open a number of disputed Guidelines issues, which were the subject of a lengthy evidentiary hearing, but stipulated that the government would not oppose a three-level acceptance of responsibility adjustment. Before sentencing, Griffin filed numerous objections to the Guidelines calculations in the presentence report; most pertinently, he denied knowingly possessing a particularly disturbing video known as “BabyJ,” and also denied telling the FBI, in a post-arrest statement, that he knew that the video had been on his computer.…

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Categories: breach, plea agreement, sentence, Uncategorized

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