Navigation

Archive | career offender

Friday, April 22nd, 2016

Second Circuit Updates – April 22, 2016

After this week’s Supreme Court decision in Welch v. United States, — S. Ct. –, slip op. (April 18, 2016) (No. 15-6418), which found that Johnson v. United States, 135 S. Ct. 2551 (2015) is retroactive to those serving Armed Career Criminal sentences, the next big question is whether the rule in Johnson will apply retroactively to career offender guidelines cases. (Quick reminder: Johnson struck down the “residual clause” in ACCA as void-for-vagueness. Identical or nearly-identical language to the residual clause pops up in many other sentencing statutes and guidelines). Welch gives some cause for hope. In an amicus brief filed yesterday in support of petitioner Alfrederick Jones for a writ of certiorari to the Supreme Court (Alfrederick Jones v. United States, No. 15-8629), the Federal Public and Community Defenders and the National Association of Federal Defenders laid out the case for why the Supreme Court …

Posted by
Categories: ACCA, career offender, crime of violence, guideline, retroactivity

Posted By
Categories: ACCA, career offender, crime of violence, guideline, retroactivity

Continue Reading
Thursday, March 24th, 2016

SDNY Update: Judge Kaplan Finds Career Offender Guideline Range Too High, Imposes Sentence Based on Offense-Specific Guideline

Yesterday in the SDNY, Judge Lewis A. Kaplan found that the career offender guidelines overstated the seriousness of the offense in a case involving a conviction under 21 U.S.C. 841(b)(1)(C), and that a sentence within the career offender guideline range of 151-188 months would have resulted in a sentence greater than necessary to achieve the statutory sentencing objectives. Instead, Judge Kaplan imposed a sentence within the 30-37 month guideline range that would have applied, under U.S.S.G. 2D1.1, absent the career offender guideline. The case was United States v. John Cole, 15 Cr. 197 (LAK).

 …

Posted by
Categories: career offender, sentencing

Posted By
Categories: career offender, sentencing

Continue Reading
Tuesday, January 4th, 2011

Over-VI’ed

United States v. Preacely, No. 09-2580-cr (2d Cir. December 21, 2010) (Raggi, Lynch, Wallace, CJJ)

In this unusual, three-opinion decision the majority remanded for resentencing, finding that the record was ambiguous as to whether the district judge understood his departure authority.

Background

Jamar Preacely pled guilty to a five-year-mando crack conspiracy pursuant to a cooperation agreement. Twenty-seven years old when he was arrested, he had sustained several drug convictions when he was younger, and was categorized by the Sentencing Guidelines as a “career offender.”

He spent about two years in custody on the federal case, then was released on bail. For the next three years, it seems, Preacely turned his life around. He entered and excelled at several rehabilitation programs, stopped using drugs, and actively cooperated in several criminal investigations.

At sentencing, as a career offender, he faced an offense level of 31 and was automatically placed in criminal history …

Posted by
Categories: career offender, departure, Uncategorized

Posted By
Categories: career offender, departure, Uncategorized

Continue Reading
Sunday, February 22nd, 2009

Sorry, Wrong Number

United States v. Poindexter, No. 07-1151-pr (2d Cir. February 10, 2009) (Walker, Calabresi, Katzmann, CJJ) (per curiam)

In 1995, Melvin Poindexter was charged with a cocaine conspiracy, with no drug quantity specified in the indictment. He therefore faced a 20-year maximum, but no mandatory minimum. Before trial, the government filed a prior felony information, which increased his statutory maximum to 30 years. After a jury convicted him, the court concluded that he was responsible for 15 to 50 kilograms of cocaine, and that he was a career offender. The court then used the career offender offense level for offenses with a statutory maximum of life, since that would have been his maximum if he had been indicted for the quantity of cocaine the court found, which of course, he was not. The corresponding guideline range was 360 to life, and the court sentenced him to 360 months. His original appeal …

Posted by
Categories: career offender, Uncategorized

Posted By
Categories: career offender, Uncategorized

Continue Reading
Friday, February 6th, 2009

Building Block

United States v. Hurell, No. 06-5653-cr (2d Cir. January 28, 2009) (Kearse, Calabresi, Sack, CJJ) (per curiam)

In each of these three consolidated cases, all government appeals, the district court held that New York convictions for burglary in the third degree or attempted burglary in the third degree were not crimes of violence as defined in the career offender provisions of the Sentencing Guidelines. Based on an intervening decision, United States v. Brown, 514 F.3d 256 (2d Cir. 2008), the court reversed.

More importantly, however, the court noted that there is a circuit split on whether burglary of a building, as opposed to a dwelling, constitutes a crime of violence under the relevant sections. The court not weigh in on the issue here, but rather called upon the Sentencing Commission resolve it, noting that the issue is of “particular significance” in the quest to avoid unwarranted sentencing disparities.…

Posted by
Categories: career offender, crime of violence, Uncategorized

Posted By
Categories: career offender, crime of violence, Uncategorized

Continue Reading
Sunday, July 27th, 2008

Remand Performance

United States v. Ogman, No. 06-0203-cr (2d Cir. July 24, 2008) (Sotomayor, Livingson, CJJ, Preska, DJ) (per curiam)

This published opinion replaces a summary order filed in this case back in April. [It was blogged in that month’s Summary Summary.] The case holds that, in a crack cocaine prosecution, a Regalado remand is not warranted when the defendant was sentenced as a career offender. The range that applies in such cases is the product of the career offender guideline, and not of the 100-to-1 powder to crack ratio.

…

Posted by
Categories: career offender, crack, Uncategorized

Posted By
Categories: career offender, crack, Uncategorized

Continue Reading
Friday, May 2nd, 2008

Youthful Indiscretion

United States v. Parnell, No. 06-4551-cr (2d Cir. April 23, 2008) (Winter, Straub, Sack, CJJ) (per curiam)

In this case, the court again holds that a New York youthful offender adjudication (a “y.o.”) – here, it was for attempted burglary in the second degree – must be included in the defendant’s criminal history score under the sentencing guidelines and, where applicable, can trigger the “career offender” enhancement.

There is nothing new or surprising about this. What is interesting about this case is its strong dicta that a y.o is not a predicate under the Armed Career Criminal Act (ACCA). Indeed, the circuit cites with approval United States v. Fernandez, 390 F. Supp.2d 277 (S.D.N.Y. 2005) (litigated and won by this very blogger), which so held, and notes that, here, the district court followed Fernandez in declining to sentence Parnell under ACCA, a sentence, not incidentally, that the government did not …

Posted by
Categories: ACCA, career offender, Uncategorized, youthful offender adjudication

Posted By
Categories: ACCA, career offender, Uncategorized, youthful offender adjudication

Continue Reading
Saturday, March 1st, 2008

Career Angst

United States v. Sanchez, No. 05-3812-cr (2d Cir. February 29, 2008) (Kearse, Straub, Pooler, CJJ).

In this long opinion, the court considered several challenges to recidivist sentences in a drug case. Two defendants, both “career offenders” under Guidelines section 4B1.1, got relief. A third, sentenced to an enhanced mandatory minimum, did not.

Career Offender

Title 28 U.S.C. § 994(h) directed the Sentencing Commission to develop Sentencing Guidelines for career offenders that would fix a Guideline range “at or near” the statutory maximum. Here, the district judge made statements that seemed to indicate that she believed that this section required her to sentence the defendants above the mandatory minimum, which was 120 months. She gave one defendant 235 months, and the other 188.

The court appellate court concluded that the district court’s apparent belief was incorrect. It noted that § 994(h) is a direction to the Commission, not the courts; moreover, …

Posted by
Categories: career offender, prior felony, Uncategorized

Posted By
Categories: career offender, prior felony, Uncategorized

Continue Reading