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Tuesday, November 19th, 2024

Second Circuit affirms wire fraud convictions post-Ciminelli

In United States v. Tamaz Pasternak, No. 23-6316-cr, the Second Circuit (Parker, Robinson, Oliver (D. Conn.)) affirmed the defendant’s wire fraud convictions despite a concededly erroneous jury instruction.

The charges arose from a purported scheme to conceal the “salvage” histories of used cars—histories of purchase by insurance companies after they’ve been damaged. Pasternak, a used-car dealer, often sold these cars at a significant discount—so one of the government’s theories of wire fraud centered on depriving customers of information about the cars, not depriving them of money. After a jury convicted Pasternak of wire fraud and conspiracy to commit the same, Pasternak alleged two instructional errors on appeal.  First, Pasternak challenged a right-to-control instruction that was held invalid in Ciminelli v. United States, 598 U.S. 306 (2023). Second, Pasternak argued that the district court should have required the jury to find that the fraudulent scheme contemplated inflicting tangible economic harm. …

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Categories: guideline, jury charge, jury instructions, wire fraud

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Monday, February 27th, 2023

The Second Circuit Grants Panel Rehearing in Gibson to Reject the Government’s Request to Recast its Holding as Dicta

In United States v. Gibson, 55 F.4th 153 (2d Cir. 2022), the Second Circuit held that the defendant’s 2002 New York state conviction for attempted third-degree criminal sale of a controlled substance was not a “controlled substance” offense under the career offender Sentencing Guideline because the New York drug schedules in 2002 included naloxegel, which had been removed from the federal schedules in 2015, making the New York offense categorically broader than the federal controlled substance offense when Gibson was sentenced in 2020. The government had conceded that the New York 2002 schedule was broader than the current federal schedule, but argued that the comparison should be between the New York and federal schedules in 2002. The Circuit rejected that argument. See December 8, 2022, Blog post.

The government (W.D.N.Y.) sought panel rehearing, asking the Court to issue an amended opinion stating that this holding was actually dicta. …

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Categories: guideline, sentencing

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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, August 4th, 2020

District court erred in relying on uncharged conduct to select the applicable Guideline provision, and the error is not harmless despite the court’s claim that it would have imposed the same sentence under the correct Guideline.

In United States v. Huberfeld, 2d Cir. No. 19-436 (L), the Court (opinion by Judge Pooler, joined by Judges Lynch and Menashi) vacated both a 30-month sentence and a $19 million order of restitution for basically the same reason – the district court erred in relying on uncharged criminal conduct, beyond and broader than what the defendant actually pleaded guilty to via a negotiated information and plea agreement, in selecting the applicable Guideline provision and awarding restitution. The Court also found that the Guideline-selection error is not harmless, despite the district court’s claim that it would’ve imposed the same 30-month sentence under the correct Guideline, because under the circumstances here, the Court was not “confident” that the incorrect range did not “clearly” affect the court’s selection of the ultimate sentence.

Here’s the factual gist. Huberfeld solicited investments for Platinum Partners, a hedge fund. He spoke to co-conspirator Jona Rechnitz, …

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Categories: bribery, guideline, restitution, Uncategorized

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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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Monday, April 17th, 2017

Second Circuit Vacates 225-month Sentence in Child Pornography Case as Substantively Unreasonable

Today, in United States v. Jenkins, the Second Circuit concluded that a 225-month sentence for the possession and transportation of child pornography was substantively unreasonable and vacated and remanded for resentencing, concluding that the district court’s sentence “went far overboard” and was “shockingly high”  Opinion at 11, 12.

Jenkins was convicted after trial of one count of possession of child pornography (18 U.S.C. 2252A(a)(5)(B)) and one count of transportation of child pornography (18 U.S.C. 2252A(a)(1)).  He was sentenced to concurrent time of 120 months on the possession count (the statutory maximum) and 225 months on the transportation count (just below the statutory maximum of 240 months), and to 25 years of supervised release.  The child pornography he possessed (and brought with him on a family vacation to Canada) was for personal use.  He did not produce or distribute child pornography and did not attempt to contact a minor.  This …

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Categories: child pornography, guideline

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Tuesday, March 7th, 2017

The Supreme Court Holds that the Advisory Guideline Are not Subject to Vagueness Challenges

In Beckles v. United States, 580 U.S. ___, 2017 WL 855781 (March 6, 2017) the Supreme Court held that Johnson v. United States, 576 U.S. 2551, 135 S.Ct. ___ (2015), does not apply to the Guidelines’ residual clause because “the advisory Guidelines are not subject to vagueness challenges under the Due Process clause.” Slip op. at 1. In an opinion by Justice Thomas, the Court’s reasoning was based on the advisory nature of the Guidelines since United States v. Booker, 543 U.S. 220 (2005). Slip op. at 7. Because the now advisory guidelines “merely guide the district court’s discretion,” they do not implicate the vagueness doctrine’s concerns with notice and arbitrary enforcement. Slip op. at 7-9. Justice Thomas noted that the decision did “not render the advisory Guidelines immune from constitutional scrutiny,” only void-for-vagueness scrutiny; they are still subject to ex post facto rules and Eighth Amendment …

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Categories: career offender, guideline, Johnson, vagueness

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Thursday, February 16th, 2017

Second Circuit Vacates Denial of Sentence Reduction

United States v. Melendez, No. 16-1019 (2d Cir. Feb. 16, 2007) (Leval, Calabresi, Carney).

In this summary order, the Circuit vacated the denial of a motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). The Court ruled that the district court (Judge Hurley) clearly erred in deciding that the defendant (a client of Federal Defenders) was legally ineligible for a sentence reduction. Judge Hurley ruled that the defendant was ineligible because, at the original sentencing, conducted by Judge Platt, the court had found him responsible for 44.8 kilograms of heroin, a quantity that precluded him from receiving a sentence reduction. The Circuit held, however, that Judge Platt never adopted the PSR’s finding of 44.8 kilograms or otherwise made a specific quantity finding. The court merely said that the PSR’s range was “accurately computed,” which would have been true if the quantity was anywhere above 10 kilograms. Thus, the …

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Categories: 3582(c)(2), drug quantity, guideline

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Tuesday, January 17th, 2017

Circuit affirms sentence despite district court’s application of Guideline range that differed from parties’ plea agreement

In United States v. Byrd, the Second Circuit affirmed a sentence despite the District Court finding an applicable guideline range different from the one agreed to by the parties in a written plea agreement.  The Circuit held that although “district courts have the discretion to give effect to Guidelines calculations in plea agreements that result in downward departure from the correct Guidelines range,” there is no affirmative obligation that the district court give effect to such calculations.  Unless the district court misunderstood its authority to depart, the decision not to depart is generally unreviewable.…

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Categories: guideline, plea agreement

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