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Archive | plain error

Friday, August 4th, 2023

De novo resentencing required after district court imposed a supervised-release term, following revocation, that exceeded the statutory maximum

In United States v. Sire Gaye, 2d Cir. No. 22-251-cr (August 4, 2023), the panel (Judges Park, Nardini, and Nathan) issued a per curiam opinion vacating the district court’s revocation sentence and remanded for de novo resentencing. Although only the supervised-release portion of the revocation sentence was unlawful – the five-year term exceeded the statutory maximum – the Court decided that, instead of simply lowering that term to the true maximum (18 months) and leaving alone the imprisonment portion of the sentence (three years’ imprisonment) – as the Government wanted — the district court should decide in the first instance how to apportion the imprisonment and supervised release portions of its revocation sentence on remand (as Gaye desired).

Here’s the gist. Gaye pleaded guilty to bank fraud in 2018 and was sentenced to two months’ imprisonment followed by five years of supervised release – the statutory maximum. The court …

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Monday, July 10th, 2023

Guilty of money laundering? Not so fast.

The federal money-laundering statute, 18 U.S.C. § 1956(a)(1)(B)(i), makes it a crime for any person, “knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity,” to conduct or attempt to conduct “such a financial transaction which in fact involves the proceeds of specified unlawful activity … knowing that the transaction is designed in whole or in part … to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity.” (Emphasis added.)

In United States v. Aybar-Peguero, Nos. 21-1711(L), 21-1847(Con) (2d Cir. July 6, 2023) (Walker, Lee, and Nathan), the defendant pleaded guilty to this offense—known as “concealment money laundering”—and to drug trafficking. He admitted that he sold narcotics out of his convenience store and deposited the proceeds into his bank accounts along with his store’s legitimate earnings. …

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Categories: money laundering, plain error

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Friday, May 12th, 2023

A Divided Panel Of The Second Circuit Upholds A Barebones CCE Indictment That Identifies No Predicate Acts

In United States v. Colin Montague, 19-2975 (2d Cir. May 9, 2023), a divided panel of the Second Circuit affirmed a CCE conviction and life sentence based on an indictment that identified no predicate offenses but alleged only that the defendant “did knowingly, willfully and unlawfully engage in a Continuing Criminal Enterprise in that he did violate Title 21 United States Code, Sections 841(a)(1) and 846, which violations were part of a continuing series of violations of said statutes.” Judge Menashi wrote the opinion, joined by Judge Bianco. Judge Jacobs dissented.

The majority acknowledged that “the violations composing a continuing criminal enterprise are elements of the CCE offense and must appear in the indictment.” It posed the question as “the level of detail with which the violations must appear.”  Op. 11. It relied on United States v. Flaherty, 295 F.3d 182 (2d Cir. 2002), which it read to …

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Categories: CCE, grand jury, indictment, plain error

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Tuesday, September 6th, 2022

A prior conviction under N.Y. Penal Law § 130.50(3) (1965) categorically “relates to” the sexual abuse of a minor, justifying the sentencing enhancements (for child pornography offenses) of 18 U.S.C. § 2252A(b)(1) and (b)(2) — which aren’t unconstitutionally vague. United States v. Ragonese, No. 20-3371-cr, __F.4th__ , 2022 WL 3903437 (2d Cir. Aug. 31, 2022) (Sack, Lynch, and Bianco, Circuit Judges).

  1.  The sentencing enhancements of 18 U.S.C.§ 2252A(b)(1) and (b)(2)

This case concerns the recidivist sentencing enhancements of the child pornography statute, 18 U.S.C. § 2252A. For offenses involving “possession” of child pornography, the penalty is 0 to 10 years’ imprisonment. For “receipt,” there’s a 5-year mandatory minimum prison sentence. But, if the defendant has a prior state conviction under a law “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward,” the minimum penalties are significantly enhanced: for possession, the minimum prison sentence increases from 0 years to 10 years; for receipt, the minimum increases from a 5-year prison term to 15 years. See18 U.S.C. § 2252A(b)(1) (receipt),  (b) (2) (possession). (The maxima also increase:  from 10 years to 20 years for possession, and from 20 years to 40 years for receipt).

In this case, Appellant pleaded guilty to one count of possessing …

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Thursday, June 24th, 2021

Challenging § 924(c) convictions based on multiple predicates after Davis.

Since the Supreme Court decided United States v. Davis, 139 S. Ct. 2319 (2019), lower courts have grappled with pre-Davis § 924(c) convictions predicated on both a valid crime of violence and a predicate offense that no longer categorically qualifies (for example, a § 924(c) conviction predicated on both a substantive Hobbs Act robbery and a Hobbs Act conspiracy). In United States v. Eldridge, No. 18-3294-cr (2d Cir. June 22, 2021), the Second Circuit provides guidance on this issue.

In Eldridge, one defendant was convicted at trial of a § 924(c) offense with three possible predicate crimes of violence: (1) kidnapping in aid of racketeering; (2) conspiracy to commit Hobbs Act robbery; and (3) attempted Hobbs Act robbery. The trial was conducted before Davis was decided, so there was no dispute about these predicates. Following Davis, however, both parties agreed that the kidnapping and Hobbs …

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Wednesday, May 26th, 2021

Twenty-year term of supervised release neither procedurally nor substantively unreasonable

In United States v. Joseph Williams, No. 20-1021 (2d Cir. May 26, 2021), a Panel of the Court (Pooler, Sullivan, and Park) ruled in a per curiam opinion that Williams’s 20-year term of supervised release, to follow a 160-month term of imprisonment, was neither procedurally nor substantively unreasonable on plain-error review. Williams argued principally that the term of supervised release was procedurally faulty because the district court violated 18 U.S.C. § 3553(c), requiring a sentencing court to “state in open court the reasons for its imposition of the particular sentence . . . .” Specifically, while the court the explained the basis for the chosen term of imprisonment (and discussed the § 3553(a) factors in so doing), it “did not separately explain the factors [in] imposing the term of supervised release.” Op. 4.

The Court found “no procedural error in the district court’s failure to separately explain the basis …

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Wednesday, June 3rd, 2020

Circuit affirms convictions arising from usurious and fraudulent lending scheme.

In United States v. Tucker, No. 18-181(L) (2d Cir. June 2, 2020) (Leval, Pooler, and Parker), the Second Circuit unanimously affirmed Muir’s and Tucker’s convictions arising from their operation of an illegal payday lending scheme.

The central issue on appeal concerned the jury instructions regarding “willfulness.” The trial judge instructed the jury with respect to several counts that the defendants acted willfully if they knew of the high interest rates being charged to borrowers, even if the defendants believed the lending was lawful. The defendants, however, failed to object to the jury instructions after they were given, as generally required by Fed. R. Crim. P. 30. Thus, the Circuit held, the defendants’ had to satisfy the demanding “plain error” standard to prevail on appeal.

The Circuit ruled that, even if the challenged “willfulness” instruction was erroneous—an issue it did not resolve—any error was not reversible plain error. The Court …

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Monday, June 3rd, 2019

Supreme Court to decide whether plain-error review applies when defendant does not object to sentence as substantively unreasonable at sentencing

Today the Supreme Court granted cert. in Holguin-Hernandez v. United States, S. Ct. No. 18-7739, to resolve the earth-shattering question of whether plain-error review applies to an appellate claim of substantive unreasonableness (i.e., “The sentence is too damn long!”) when defense counsel did not object to the sentence’s unreasonableness at sentencing. The case comes out of the 5th Circuit, the only Circuit to apply plain-error review in this situation. Eight Circuits have held that a post-sentence objection is not required to invoke regular ol’ “substantive reasonableness” review (i.e., abuse of discretion review) on appeal. The Second Circuit has dodged this question, concluding every time that it need not resolve the issue because the challenged sentence is proper even under ordinary reasonableness review. See, e.g., United States v. Nesbitt, 757 F. App’x 13, 14 (2d Cir. Nov. 26, 2018).

 

As we breathlessly await The Nine’s …

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Tuesday, June 26th, 2018

Plain Error Under Rosales-Mireles

Though it disgraced itself today, the Supreme Court issued a hopeful opinion last week in Rosales-Mireles v. United States concerning the scope of plain error review for unobjected-to Guidelines miscalculations at sentencing. One of the most significant parts of this opinion is a footnote where the Court confirms that “proof of a plain Guidelines error” will ordinarily be sufficient for a defendant to meet the burden of showing that the error “seriously affected the fairness, integrity, or public reputation of judicial proceedings.” Slip op. at 11 n.3. The opinion, worth reading in its entirety, is available here.

The defendant in Rosales-Mirales was sentenced (for illegal reentry) based on an incorrect Guidelines range resulting from an incorrect calculation of his criminal history score. He was sentenced at the low end of the incorrectly calculated Guidelines range, but squarely in the middle of the correct Guidelines range. The defendant did not …

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Friday, February 9th, 2018

VOSR Sentence Declared Procedurally Unreasonable on Plain Error Review

It’s been a slow week for the Second Circuit, but today it issued a summary order reversing a sentence for violations of supervised release as procedurally unreasonable. This holding is unremarkable in light of the district court’s failure to articulate any specific reasons for the defendant’s above-Guidelines sentence. Somewhat notable, however, is the panel’s discussion of why the sentence is reversible under plain error review. The summary order in United States v. Kalaba, No. 17-328 (Katzmann, Pooler, Droney) (appeal from Preska, J., SDNY), is available here.

While on supervised release, Mr. Kalaba was arrested and indicted for several counts relating to a narcotics distribution conspiracy. He was sentenced to 84 months’ imprisonment after pleading guilty to one count and being convicted of the others at trial. While awaiting trial, the Probation Office submitted a report charging four violations of supervised release. Two violations were established by the narcotics …

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Thursday, February 1st, 2018

Plain Error Reversal of Supervised Release Condition re. Alcohol

Today the Second Circuit reversed a district court’s sentence imposing as a special condition of supervised release that the defendant refrain from using any alcohol whatsoever while on supervision. The summary order in United States v. Betts, No. 17-231-cr (Leval, Calabresi, Cabranes) (appeal from W.D.N.Y.) is available here.

The defendant in Betts was originally convicted of conspiracy to commit bank fraud in violation of 18 U.S.C. § 1349. After release from prison, he pled guilty to a supervised release violation (pursuant to a plea agreement) for failing to notify his probation officer within 72 hours of arrest. The district court sentenced the defendant to ten months’ imprisonment and four months of supervised release. As a special condition of the supervised release, the court required that the defendant refrain from consuming any alcohol.

On plain error review, the Second Circuit held that the district court abused its discretion by …

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