Federal Defenders of New York Second Circuit Blog

plain error

Sentencing court plainly erred by (1) crossing the “fine line” between declining leniency for a defendant’s silence and punishing him for it; and (2) varying upward on facts already accounted by the Guidelines

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United States v. Bagley, No. 25-606 (2d Cir. Aug. 24, 2026) (Sullivan, Bianco, Robinson (writing); Sullivan, J., dissenting). The Second Circuit vacated Stefan Bagley’s 84-month sentence for firearm trafficking conspiracy under 18 U.S.C. § 933(a)(3) and (b) — 21 months above the top of his 51–63 month Guidelines range and 30 months above what the … Read more

“Take any prescribed medications” condition of supervised release is plainly erroneous absent medically grounded, on-the-record findings that compelled medication is necessary.

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United States v. McCrone, No. 22-3178 (L) (2d Cir. July 21, 2026) (Walker, Lee, Robinson) The Second Circuit today struck, on plain-error review, a supervised-release condition requiring the defendant to “continue to take any prescribed medications unless otherwise instructed by the health care provider.” Slip op. at 6. (The condition was a stock sentence embedded … Read more

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

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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 … Read more

Guilty of money laundering? Not so fast.

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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 … Read more

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

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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 … Read more

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).

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 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 … Read more

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

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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 … Read more

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

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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 … Read more

Circuit affirms convictions arising from usurious and fraudulent lending scheme.

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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 … Read more

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

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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 … Read more