Archive | career offender

Wednesday, September 16th, 2020

Second Circuit: On a motion under the First Step Act, a court isn’t obligated to “recalculate” the Sentencing Guidelines range to account for new Guidelines provisions “or new judicial interpretations of existing Guidelines.” Only Guideline-changes “that flow from the Fair Sentencing Act of 2010” have to be considered. But there’s an acknowledged circuit split. United States v. Moore, __F.3d__, No. 19-1390-cr, 2020 WL 5523205 (2d Cir. Sept. 15, 2020).

In United States v. Moore, No. 19-1390-cr (available here), the Circuit (Nardini, joined by Chin and Sullivan), holds that, on a motion for a sentence reduction under Section 404 of the First Step Act, a court isn’t required to “recalculate” the Guidelines range under the current law, unless (and only to the extent) the Fair Sentencing Act of 2010 changed the Guidelines range.

Here, the district court found Moore eligible for relief under the First Step Act, as indeed he was: he was sentenced in 2009 for  “possessing with intent to distribute more than 5 grams of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B).” Op. at 4.  The district court  nevertheless declined to exercise it’s discretionary authority, under the Act, to reduce the (188-month) sentence. The Circuit affirmed that decision. Op. at 2, 26-27.

Moore’s argument was that the district court miscalculated the Guidelines …


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Categories: career offender, First Step Act, guideline

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Tuesday, July 21st, 2020

Circuit Will Decide En Banc Whether New York First-Degree Manslaughter Is a “Violent Felony” and “Crime of Violence.”

In United States v. Scott, 954 F.3d 74 (2d Cir. Mar. 31, 2020), a divided panel held that New York first-degree manslaughter is neither a predicate “violent felony” under the Armed Career Criminal Act nor a “crime of violence” under the Career Offender Guideline because it can be committed by complete inaction and therefore without the use of force, as defined in Curtis Johnson v. United States, 559 U.S. 133 (2010). The panel also held that New York first-degree manslaughter does not match any of the generic offenses enumerated in the Career Offender Guideline.

On July 10, 2020, the Circuit granted the government’s petition for rehearing en banc. No briefing schedule has yet been issued. Stay tuned.…


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Categories: career offender, crime of violence, violent felony

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Tuesday, May 26th, 2020

Judge Menashi’s First Criminal Opinion Goes Against the Defendant

In US v. Richardson, #19-412, Judge Menashi, joined by Judges Walker and Chin, affirmed the district court’s ruling that the defendant qualified as a career offender. The defendant’s prior offenses were (1) federal conspiracy to distribute and possess with intent to distribute cocaine (21 USC §§ 841 (a) (1) & 846) and (2) New York attempted possession of a controlled substance in the third degree (N.Y. Penal Law §§ 110.00/220.16(1)).

The issue on appeal was whether each of these offenses is a “controlled substance offense” under USSG § 4B1.2. A “controlled substance offense” is defined as “an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance … or the possession of a controlled substance … with intent to manufacture, import, export, distribute, or dispense.” USSG § 4B1.2(b). Application note 1 …


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Categories: career offender, Uncategorized

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Thursday, April 30th, 2020

Examining the scope of crack resentencings under the First Step Act

Last week we highlighted the Second Circuit’s decision in United States v. Holloway, No. 19-1035, holding that a motion for a sentence reduction under Section 404 of the First Step Act of 2018 is governed by 18 U.S.C. § 3582(c)(1)(B), not § 3582(c)(2).

In United States v. Chambers, No. 19-7104, 2020 WL 1949249 (4th Cir. Apr. 23, 2020), the Fourth Circuit recently reached the same conclusion in addressing a slightly different issue. In Chambers, the district court erroneously applied a career offender enhancement in a First Step Act crack resentencing, because the career offender enhancement had been applied at the original sentencing. Overturning this decision, the Fourth Circuit holds that the “First Step Act does not constrain courts from recognizing Guidelines errors” and that “any Guidelines error deemed retroactive … must be corrected in a First Step Act resentencing.”

Although this is a somewhat narrow issue, the …


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Categories: career offender, First Step Act of 2018

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Thursday, April 2nd, 2020

A Crime that Can be Committed by Inaction is Not a “Crime of Violence”

The Second Circuit held this week that an offense is not a “crime of violence [if] it can be committed by complete inaction and therefore without the use of force.”  United States v. Scott, ___ F.3d ___, 2020 WL 1522825, at *1 (2d Cir. Mar. 31, 2020).

Mr. Scott had originally been subjected to the Armed Career Criminal Act’s 15-year mandatory minimum, along with the Career Offender Guideline, based on two prior convictions for New York manslaughter in the first degree.  Someone is guilty of that offense when, “[w]ith intent to cause serious physical injury to another person, he causes the death of such person or of a third person.”  N.Y. Penal Law § 125.20(1).  New York’s highest court has said this statute reaches a parent’s “failure to obtain medical care for a child.”  People v. Steinberg, 79 N.Y.2d 673, 680 (1992).  See also id(“The Penal …


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Categories: ACCA, career offender, crime of violence

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Tuesday, June 25th, 2019

SDNY: Judge Castel Rules That 21 U.S.C. 846 Is Not A “Controlled Substance Offense” Under The Guidelines

Monday, in United States v. Sprull, 18 Cr. 665, Judge Castel ruled that a prior conviction under 21 U.S.C. 846 is not a controlled substance offense under U.S.S.G. 4B1.2(b). Judge Castel agreed with Judge Oetken’s analysis in United States v. Wilson, 18 Cr. 12, and ruled that under the categorical approach, 846 has no overt act requirement, whereas the generic offense of “conspiring” under Application Note 1 to 4B1.2(b) does. As a result, 846 is a categorical mismatch for the Guidelines predicate. We have requested the transcript and will circulate it. We also have briefing on this issue for anyone who’s interested.

The question is currently pending before the Second Circuit in United States v. Tabb, No. 18-338 (briefing complete; oral argument not scheduled yet).…

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Tuesday, December 18th, 2018

Supreme Court Decides Stitt

Last week, the Supreme Court held in United States v.  Stitt, Nos. 17-765 & 17-766, that the Armed Career Criminal Act’s (ACCA’s) definition of “violent felony” covers burglary statutes that criminalize unlawful entry into vehicles adapted or customarily used for overnight accommodation. As explained below, the decision does not appear to have any bearing on whether the ACCA covers New York’s third-degree burglary statute, N.Y. Penal Code § 140.20.

The enumerated clause of the ACCA identifies “burglary” as a violent felony. 18 U.S.C. § 924(e)(1)(ii). In Taylor v. United States, 495 U.S. 575 (1990), the Supreme Court adopted the categorical approach to analyzing the ACCA and, in doing so, held that Congress “intended a uniform definition of burglary [to] be applied” to cases involving that predicate offense. Id. at  580. This uniform definition of burglary, the Court held in Taylor, covers unlawful entry into “a building or other …


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Categories: ACCA, burglary, career offender, crime of violence

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Friday, June 15th, 2018

(Non-)Waiver and the Generic Definition of Manslaughter

Last week the Second Circuit issued an opinion holding that, under the residual clause of the pre-2016 Career Offender Guideline (COG), U.S.S.G. § 4B1.2(a)(2), offenses under a subsection of New York’s first-degree manslaughter statute are crimes of violence. In so holding, the Circuit defined the generic definition of manslaughter to include “the unlawful killing of another human being recklessly.” United States v. Castillo, No. 16-4129 (2d Cir. 2018) (Cabranes, Raggi, Vilardo (WDNY)) (appeal from Woods, J., SDNY), slip op. at 24. The Court further held, in conclusory fashion, that the government did not waive this argument when it conceded, pre-Beckles, that the residual clause of the pre-2016 COG was unconstitutionally vague. The opinion in Castillo, available here, may be of interest to practitioners dealing with the pre-2016 Guidelines, and is more generally worth noting for its loose language  concerning appellate waiver — language that …


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Categories: career offender, categorical approach, manslaughter, waiver

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Friday, June 8th, 2018

Seventh Circuit Holds that Beckles Does Not Apply to Pre-Booker Sentences

More news out of the Midwest:  In United States v. Cross, the Seventh Circuit held that Beckles v. United States applies only to post-Booker cases in which the Sentencing Guidelines were advisory.  In pre-Booker cases in which the Guidelines were mandatory, the residual clause of the career-offender guideline is unconstitutionally vague under Johnson v. United States.…


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Categories: career offender, Johnson

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Thursday, March 8th, 2018

Second-Degree NY Robbery Is A Crime of Violence Under the Pre-2016 Career Offender Residual Clause

Today, in a short opinion, the Second Circuit confirmed that second-degree robbery in New York is categorically a crime of violence under the residual clause of the pre-2016 Career Offender Guideline (COG). See U.S.S.G. § 4B1.2 (2015). The opinion in United States v. Smith, No. 15-3313 (2d Cir. 2018) (Winter, Cabranes, Restani) (appeal from Failla, J., SDNY), is available here.* (A separate panel reached the same conclusion, with less analysis, earlier this week in United States v. Dove.)

Its decision, the Smith panel held, was compelled by Jones II, where the Second Circuit held that under Beckles first-degree robbery is a crime of violence under the pre-2016 COG’s residual clause. See Smith, slip op. at 9-10 (“The rationale of Jones is directly applicable to this case. In New York law, the first element of second-degree robbery is the same as the first element of …


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Categories: career offender, categorical approach, crime of violence, Johnson, robbery, sentencing

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Friday, January 26th, 2018

Categorical Approach Updates from First and Ninth Circuits (Including on 2nd-Degree NY Robbery’s Status under the Career Offender Guideline)

Two valuable opinions have been published outside the Second Circuit in recent weeks:

(1) The First Circuit has  held that attempted second-degree robbery in New York is not a “crime of violence” for purposes of the Career Offender Guideline’s force clause, U.S.S.G. § 4B1.(2)(a)(1). The opinion in United States v. Steed, No. 17-1011 (1st Cir. 2018) (Barron, J.) is available here. The court’s reasoning in Steed should be familiar to those following the district court and (vacated) Second Circuit opinions reaching the same conclusion.

As its starting point, the court looked to First Circuit case law holding that purse snatching does not necessarily require the degree of force required under Johnson I. The court then considered whether, as of 2000 (the year of the defendant’s relevant conviction), such purse snatching was a violation of New York’s second degree robbery statute, NY Penal Law  § 160.10. After …


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Categories: career offender, categorical approach, conspiracy, crime of violence, drug distribution, Johnson

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