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Friday, May 4th, 2018

Second Circuit Vacates Imposition of Lifetime Supervised Release

It’s been a busy week for the Second Circuit. On Wednesday, the Circuit reversed a sentence imposing a life term of supervised release for a defendant who had initially been convicted of drug offenses. See United States v. Brooks, No. 16-4063 (2d Cir. 2018) (per curiam) (Parker, Lynch, Chin) (appeal from Kaplan, J., SDNY). The opinion, available here, contains great language for use at sentencings and appeals.

The defendant in Brooks had initially pled guilty to distributing and possessing with intent to distribute cocaine and heroin, in violation statutes including 21 U.S.C. § 841(a)(1). After release from prison, he was charged with numerous supervised release violations, and pled guilty to violating three conditions related to drug use. At his revocation hearing, the defendant’s attorney noted the defendant’s “serious drug problem” as a “huge underlying and contributing factor” to his violations. Neither the government nor Probation recommended a specific …

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Categories: drug distribution, procedural reasonableness, sentencing, substantive reasonableness, supervised release

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Categories: drug distribution, procedural reasonableness, sentencing, substantive reasonableness, supervised release

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

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Friday, October 6th, 2017

Judge Engelmayer Issues a Significant 404(b) Opinion

Yesterday, Southern District Judge Paul Engelmayer issued a carefully reasoned and highly instructive opinion holding that a defendant’s prior drug offenses were inadmissible under Fed. R. Evid. 404(b) to prove his intent to distribute crack cocaine. The short opinion, available here, is a must-read.

The defendant in United States v. Robinson, 17-cr-249, is charged with one count of possessing crack cocaine with intent to distribute. He concedes that he possessed an 18-gram rock of crack cocaine, but argues that the possession was for personal use. To rebut this argument, the government sought to introduce the defendant’s four prior, crack-related convictions. Judge Engelmayer determined, however, that these convictions were not sufficiently similar to the charged conduct to be admissible.

Rule 404(b)(1) provides that “[e]vidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the …

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Categories: drug distribution, intent, rule 404(b)

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Categories: drug distribution, intent, rule 404(b)

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Sunday, October 26th, 2008

The Ecstasy and the Ecstasy

United States v. Ogando, No. 05-0236-cr (2d Cir. October 20, 2008) (Kearse, Calabresi, Sack, CJJ)

Francisco Ogando, a licensed livery cab driver, was convicted of participating in an ecstasy importation and distribution conspiracy. On appeal, the circuit held that the evidence was insufficient.

Background

Angel Gomez, a drug courier, was arrested at Kennedy Airport with ecstasy that he had imported from Belgium, and agreed to cooperate. He told the agents that he was supposed to call “Frank” – defendant Ogando – on arrival. He did so, and Ogando said he was right near the airport. Ogando found Gomez and brought him to his car. They did not discuss drugs, money or where they would be going, and were arrested before they got into Ogando’s car.

Ogando was found to have a cellphone – Gomez had been given that number by his handlers – a business card that mentioned Brussels and …

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Categories: conspiracy, drug distribution, sufficiency, Uncategorized

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Categories: conspiracy, drug distribution, sufficiency, Uncategorized

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Buyer’s Remorse

United States v. Hawkins, No. 07-3018-cr (2d Cir. October 16, 2008) (Straub, Raggi, CJJ, Sessions, DJ)

Alex Luna sold drugs in Danbury, Connecticut, from 2002 to 2005. Warren Hawkins was convicted, after a jury trial, of one count of conspiring with Luna to distribute less than 500 grams of cocaine and less than five grams of crack. After the verdict, the district court granted Hawkins’ Rule 29 motion, finding that, although Hawkins bought drugs from Luna with intent to resell them, there was insufficient evidence to establish that Hawkins participated in Luna’s conspiracy. On the government’s appeal, the circuit reversed.

Background

In February 2005, Hawkins spoke with a another Luna co-conspirator about purchasing five grams of cocaine. They discussed price, quality, and how Hawkins would raise the money, but the sale did not take place. A few days later, Hawkins spoke with Luna and said that some of his co-workers …

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Categories: "buyer-seller" rule, conspiracy, drug distribution, Uncategorized

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Categories: “buyer-seller” rule, conspiracy, drug distribution, Uncategorized

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Sunday, July 13th, 2008

No Sale

United States v. Wallace, No. 05-1424-cr (2d Cir. July 8, 2008) (Jacobs, Kearse, Katzmann, CJJ)

This short opinion holds that a drug purchaser who shares drugs with others socially commits a distribution offense, even though the defendant lacked a commercial purpose, because a distribution can take place without a sale. This is entirely consistent with the statutory language, under which “distribute” means “deliver,” which in turns means “transfer.”

The court also considered, and rejected, two novel arguments.

First, Wallace cited Lopez v. Gonzales, 549 U.S. 47 (2006), to support his claim that proof of commercial dealing is required. Lopez construed the phrase “drug trafficking crime” as used in the immigration statutes, and concluded that “commerce” had to be part of the offense. But that case construed a term – “trafficking” – that is not used in the statute under which Wallace was convicted.

Wallace also sought support in longstanding precedent …

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Categories: drug distribution, Uncategorized

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