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Monday, April 22nd, 2024

Supreme Court: District Court’s Failure To Enter Preliminary Order Of Forfeiture Prior To Sentencing Does Not Bar Court From Ordering Forfeiture At Sentencing.

In United States v. McIntosh, No. 22-7386 (U.S. Apr. 17, 2024), a unanimous Supreme Court held that a district court’s failure to enter a preliminary order of forfeiture prior to sentencing, as required by Fed. R. Crim. P. 32.2(b)(2)(B), “does not bar a judge from ordering forfeiture at sentencing subject to harmless-error principles on appellate review.”

McIntosh participated in a series of Hobbs Act robberies. During one of them, he took $70,000 in cash, and used part of that sum to buy a BMW. He was indicted for several counts of Hobbs Act robbery and corresponding 18 U.S.C. § 924(c) offenses. The indictment included a forfeiture allegation identifying robbery proceeds and the government also provided a bill of particulars identifying the BMW as forfeitable. McIntosh was convicted at trial. Prior to sentencing, the government did not seek, and the district court did not enter, the preliminary order of forfeiture …

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Categories: fofeiture, Rule 32

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Tuesday, July 12th, 2016

The PSR Must be Read AND DISCUSSED

DISCUSS

In today’s United States v. Richards, the Second Circuit emphasized the importance of strictly adhering to Federal Rule of Criminal Procedure 32(i)(1)(A), which requires a judge to “verify that the defendant and the defendant’s attorney have read and discussed the presentence report and any addendum to the report.”  The Circuit implied that, where the “discussion” is not confirmed, raising that issue on appeal may require reversal.…

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Sunday, January 2nd, 2011

Waiving Bye-Bye

United States v. Arevalo, No. 09-0576-cr (2d Cir. December 21, 2010) (Jacobs, Kearse, Straub, CJJ)

Defendant Manuel Vigil pled guilty to conspiracy to commit murder in aid of racketeering and using a firearm in connection with a crime of violence. He did so pursuant to a plea agreement that contained an appeal waiver – he promised not to “file an appeal or otherwise challenge” his conviction or sentence if the district court imposed a sentence of 195 months’ imprisonment or less.

When he was sentenced, although Vigil disputed certain facts in the presentence report, the district court did not resolve any of the disputes. It ultimately sentenced him to 157 months’ imprisonment.

Despite the waiver, Vigil filed a pro se notice of appeal. His attorney then filed an Anders brief, but the circuit bounced it. After counsel repeatedly ignored the court’s orders to cure the Anders brief, the court appointed …

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Categories: appeal waiver, Rule 32, Uncategorized

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Sunday, February 22nd, 2009

Dont Speak!

United States v. Gutierrez, No. 08-3581-cr (2d Cir. February 11, 2009)(Cabranes, Sotomayor, CJJ, Rakoff, DJ)

Before Gutierrez was sentenced, his counsel filed a lengthy sentencing memorandum outlining five separate grounds for a below-guideline sentence. The government’s written response sought a guideline sentence. At sentencing, the court did not address the attorneys at all. It gave Gutierrez an opportunity to speak, indicated that it had considered the § 3553(a) factors, then imposed a sentence at the bottom of the guideline range.

Defense counsel objected, pointing out that the court had not considered the issues raised in his sentencing memorandum, and that the court had imposed a sentence without giving counsel a chance to speak. At counsel’s request, the court vacated the sentence. Counsel then argued the issues in the sentencing memorandum, and the government briefly responded, again asserting that a guideline sentence would be appropriate. Counsel responded by pointing out that …

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Categories: Rule 32, sentencing allocution, Uncategorized

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