Archive | Eighth Amendment

Friday, April 13th, 2018

Miller Round-Up

The Second Circuit issued no criminal opinions or notable summary orders this week. This silence provides the occasion to flag two recent decisions outside the Circuit about the scope of Miller v. Alabama (2012) (requiring individualized sentencing consideration before sentencing a juvenile offender to life without parole, and holding that this punishment may be imposed only on “the rare juvenile offender whose crime reflects irreparable corruption”).

First, Judge Hall of the District of Connecticut extended Miller’s holding to 18 year-old offenders. The decision in Cruz v. United States, granting a successive 2255 petition, is available here. Judge Hall’s opinion in Cruz identifies national policy and scientific consensuses that disfavor mandatory life without parole (LWOP) for 18 year-olds.  With respect to the policy consensus, Judge Hall looked beyond the number of states that forbid LWOP for 18 year-olds to consider the actual frequency with which this punishment is …

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Categories: Eighth Amendment, life, Miller

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Monday, April 11th, 2016

EDNY: Dearie Reduces JLWOP Sentence to 35 Years

In 1989, when he was 16 years old, Alex Wong, a teen runaway who had been recruited by a violent street gang, committed a murder during an extortion gone awry.  He was convicted of RICO conspiracy and sentenced to life under the mandatory Guidelines. On Friday, in light of the Supreme Court’s decisions in Miller v. Alabama, 132 S. Ct. 2455 (2012) (holding that the Eighth Amendment prohibits a mandatory LWOP sentence for a juvenile), and Montgomery v. Louisiana, 136 S. Ct. 718 (2016) (holding that Miller applies retroactively), Judge Dearie vacated the life sentence and resentenced Wong to 35 years. Citing developments in neuroscience regarding juvenile brain development, Judge Dearie told Wong: “It does give us hope that perhaps you did not fully understand and assess the full range of consequences.”


No published opinions from the Circuit.

In a summary order (United States v.

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Wednesday, July 14th, 2010

Second Time Aground

United States v. Castello, No. 09-2784-cr (2d Cir. July 7, 2010) (Jacobs, Winter, McLaughlin, CJJ)

Joseph Castello was convicted of failing to file CTRs in connection with his check cashing business. When last we heard from him, see Cashed and Burned, posted 2/6/2009, the circuit vacated a 12 million dollar-plus forfeiture order and remanded for more complete findings under United States v. Bajakajian, 524 U.S. 321, 337-39 (1998), and its Eighth Amendment-derived excessive fines test. On remand, the district court made findings on the four factors set out in Bajakajian, and reduced the amount of the forfeiture to zero. On this, the government’s appeal, the circuit vacated the zero and ordered reimposition of the original forfeiture amount.

Reviewing the district court’s findings de novo, the circuit found fault with all of them. The first Bajakajian factor requires consideration of “the essence of the crime of the defendant and its relation …

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Categories: Eighth Amendment, excessive fines, forfeiture, Uncategorized

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Friday, February 6th, 2009

Cashed and Burned

United States v. Varrone, No. 07-4533-cr (2d Cir. January 30, 2009) (Calabresi, Sotomayor, Parker, CJJ)

Joseph A. Castello ran a check cashing business. He cashed more than $200 million in checks that exceeded $10,000 – charging a four percent check-cashing fee – for which he was obligated to file currency transaction reports (CTR’s). He did not, however, and was convicted by a jury of violating 31 U.S.C. §§ 5313 and 5322(a). On appeal, he challenged a restitution order, and claimed that the forfeiture order violated the Excessive Fines Clause of the Eighth Amendment. The circuit vacated.

The Restitution Order

The restitution order involved a fraud victim, who was induced to send a $300,00 check to a bogus financial firm. This had nothing at all to do with Castello, except that the firm cashed the check at his establishment. When the victim contacted Castello, he falsely represented that he was an …

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Categories: Eighth Amendment, forfeiture, restitution, Uncategorized

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