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Thursday, January 9th, 2020

Circuit Vacates Sentence Based on District Court’s Misunderstanding of Authority to Impose Anticipatory Concurrent Sentence; Declines to Enforce Appeal Waiver Where Government Consents to Partial Remand.

In United States v. Anderson, ___ F.3d ___, No. 18-1839 (2d Cir. Jan. 9, 2020) (Jacobs, Sack, Hall), the Circuit vacated and remanded a 120-month sentence based on two errors: (1) the district court misunderstood its authority to order that the federal sentence run concurrently with a yet-to-be-imposed state parole violation sentence; and (2) the district court misunderstood its authority to reduce the federal sentence below the mandatory minimum to account for time already served on an undischarged state sentence for relevant conduct. In doing so, the Circuit declined to enforce the appeal waiver in the defendant’s plea agreement, based in part on the government’s consent to a partial remand.

This decision arises from one of the most confusing areas of federal sentencing: the interaction of federal and state sentences for related conduct. While on parole for a Pennsylvania state drug conviction, defendant was arrested and charged …

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Friday, December 8th, 2017

Judge Weinstein on Incapicitory Sentencing

Today Eastern District Judge Weinstein issued a carefully researched opinion explaining the relatively lengthy—and in one case statutorily mandated—sentences of three adolescent defendants who each pled guilty to one count of brandishing a firearm. The opinion, available here, includes a balanced and detailed critique of the current methods to punish and rehabilitate young offenders who commit violent crimes, but for whom lengthy prison sentences are not necessarily appropriate.

From Judge Weinstein’s opinion:

Defendants—all adolescents—were gang-members, typically from impoverished and broken families.

They present the court with a number of troubling sentencing issues: (1) the need to prevent future acts of violence by gang members who, because of their home environment, and past affiliations, may be unable to escape the strictures of gang control; (2) the requirement that a sentencing court consider a defendant’s age, potential for rehabilitation, and culpability when crafting a sentence; (3) the limited ability of the

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Wednesday, November 1st, 2017

Letter in Support of Mandatory Minimum Sentencing Reform

Yesterday the Federal Defenders Legislative Reform Committee sent a letter in support of legislation to reform federal mandatory sentencing laws. The letter, available here, urges the Senate Judiciary Committee to support two modest attempts to reduce mandatory minimums and constrain unchecked prosecutorial charging power: (1) The Sentencing Reform and Corrections Act of 2017 (S. 1917) and (2) The Smarter Sentencing Act of 2017 (S. 1933). In detail, the letter describes how mandatory minimums are used to coerce low-level offenders into forgoing their trial rights, while enabling more serious offenders to avoid the punishments that Congress.

The letter’s subject headings offer a helpful synopsis of the Legislative Reform Committee’s position:

I.  The Human and Financial Costs of the Current Mandatory Minimum Laws Are  Unjustified.

II. Real Reform Is Necessary to Prevent the Use of Mandatory Minimums for Purposes for Which They Were Not Intended.

A. Sentences Intended for Kingpins and

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Monday, April 3rd, 2017

Unanimous Supreme Court: District Court Can Consider Length of Consecutive Sentence in Imposing Sentence on the Underlying Offense

Today in Dean v. United States, the Supreme Court unanimously held that a district court may consider the consecutive mandatory sentence required under 18 U.S.C. 924(c) when imposing the sentence to be served on the underlying offense.  You can access the opinion here.  The length of the mandatory consecutive sentence bears on the factors to be considered under 18 U.S.C. 3553(a), such as the need to protect the public and to provide adequate deterrence.

“Nothing in § 924(c) restricts the authority conferred on sentencing courts by § 3553(a) and the related provisions to consider a sentence imposed under § 924(c) when calculating a just sentence for the predicate count,” the Court explained.  In other words, “nothing . . . prevents a district court from imposing a 30-year mandatory minimum sentence under § 924(c) and a one-day sentence for the predicate violent or drug trafficking crime, provided those terms …

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Sunday, October 14th, 2012

You’ve Been Trumped

United States v. Carter, No. 11-3605-cr (2d Cir. September 28, 2012) (Leval, Cabranes, Katzmann, CJJ)

The “parsimony clause” of 18 U.S.C. § 3553(a) requires that the court impose a sentence that is not “greater than necessary” to serve the goals of sentencing. Many offense statutes, however, contain a  mandatory minimum sentence: a “blunt directive that may require judges to give sentences that they consider unduly punitive.”

On this appeal, Carter, who received a ten-year mandatory drug sentence – five years doubled due to his prior felony conviction – argued that this minimum did not bind the district court because the drug statute did not expressly override the parsimony clause.  The circuit disagreed, and affirmed.

Carter relied on 18 U.S.C. § 3551(a), which states that, “except as otherwise specifically provided,” a sentence must comport with § 3553(a). He also noted that many other statutes that prescribe a mandatory minimum contain …

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Sunday, May 3rd, 2009

Porn At Home

United States v. Polouizzi, No. 08-1830-cr (2d Cir. April 24, 2009)(Leval, Katzmann, Raggi, CJJ)

Defendant – referred to in the opinion as Peter Polizzi – was convicted by a jury of eleven counts of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B), and twelve counts of receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2), after the jury rejected his insanity defense. Post-trial, he made a Rule 33 motion, arguing that the district court erred by refusing to inform the jury that the receipt counts carried a five-year mandatory minimum. Based in part on a post-verdict colloquy with the jurors that revealed that at least some of them would have accepted the insanity defense had they known of the mandatory minimum, the court granted the motion on the receipt counts only. Both sides appealed.

The Defendant’s Appeal

A. Double Jeopardy

1. Multiple Counts of Possession…

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Wednesday, March 25th, 2009

Publish and Perish

United States v. Samas, No 05-5213-cr (2d Cir. March 24, 2009) (Jacobs, Wesley, Hall, CJJ) (per curiam)

This case was originally decided by summary order in December of 2009. On the government’s motion, the court withdrew the summary order and issued this published decision in its place.

The decision resolves two recurring claims with respect to mandatory minimum sentences. First, the court has long held that the federal drug statutes’ disparate treatment of cocaine and crack offenses does not violate equal protection. Samas made the same equal protection claim here, arguing that the issue should be reconsidered in light of Kimbrough. The circuit disagreed: “Kimbrough bears upon the discretion of district judge to sentence within the maximum and minimum sentence ‘brackets’ [but] does not disturb our precedents rejecting challenges to the constitutionality of the mandatory sentencing scheme” for drug cases.

Samas also argued that the parsimony clause in § 3553(a) …

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Saturday, October 6th, 2007

Why Oh, Why Oh, Y.O?

United States v. Jackson, Docket No. 06-5928-cr (2d Cir. October 5, 2007) (Miner, Cabranes, CJJ, Crotty, DJ) (per curiam)

This case continues the court’s seemingly relentless, and highly questionable, line of cases upholding the use of New York State youthful offender adjudications (“Y.O.”’s) as sentencing enhancers.

In United States v. Sampson, 385 F.3d 183 (2d Cir. 2004), the court held that a Y.O. constituted a prior drug felony for purposes of the sentencing enhancements contained in 21 U.S.C. §§ 841(b) and 851.

Here, Jackson, whose Y.O doubled a five-year mandatory minimum, tried to capitalize on a potential hole in Sampson. He argued that the Sampson court’s observation that the defendant served his Y.O. sentence in an adult institution created a requirement that district courts find this to be true before enhancing a drug sentence based on a Y.O.

The court disagreed. A finding of fact on this question is not …

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