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Wednesday, September 6th, 2023

Drug-distribution premises sentencing enhancement applies to dealing drugs from premises formerly used as residence

In United States v. Vinales, No. 22-331-cr (Aug. 29, 2023), the panel (Lynch, Lohier, and Bianco) issued a per curiam opinion affirming application of the drug-distribution premises enhancement of U.S.S.G. § 2D1.1(b)(12).

Vinales was charged with selling drugs out of an apartment where he had once resided, but no longer did at the time of arrest. On appeal, he argued that the two-point enhancement should not apply because he did not maintain the premises after moving out “for the purpose of manufacturing or distributing a controlled substance.” In its first published opinion on this enhancement, the Circuit relied on guidelines commentary to endorse the “totality-of-the-circumstances” test employed below. It held the enhancement was applicable, reasoning that Vinales maintained the apartment and continued to sell drugs from it once he moved out. Thus, even if he still socialized there after moving out, the district court properly determined that, at his arrest, …

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Categories: 2D1.1, drug distribution, sentencing findings

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Tuesday, September 3rd, 2019

Second Circuit vacates a sentence as procedurally unreasonable because the district court’s “calculation of drug quantity” wasn’t supported by a preponderance of the evidence

Second Circuit vacates a sentence as procedurally unreasonable because the district court’s “calculation of drug quantity” wasn’t supported by a preponderance of the evidence: United States v. Burks, No. 18-1361-cr, __ F. App’x__, 2019 WL 4049857  (Aug. 28, 2019). 

In a summary order, the Second Circuit vacates and remands “for sentencing” because the evidence didn’t support the district court’s drug-quantity calculation.  United States v. Burks, 2019 WL 4049857 at *3.

Local police executed a search warrant at Burks apartment and recovered “1.21 grams of cocaine residue from various narcotics packaging and processing materials at the apartment and an adjoining unit.” Id. at *1. “In the Plea Agreement,” Burks admitted that, before the police search, he had “distributed cocaine in 1//2 ounce and one ounce amounts.” Id. And the drug quantity that “could be readily proven by the government” “was less than 50 grams,” resulting in a Sentencing Guidelines …

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Categories: drug quantity, sentencing, sentencing findings

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Friday, November 9th, 2018

Judge Weinstein on Alcohol-Related Supervised Release Violations

Judge Weinstein issued an opinion this week terminating the supervised release of a defendant who violated a standard condition of release by consuming alcohol while in a drug treatment program. See United States v. Thomas, No. 15-cr-382, DE 575 (Nov. 6, 2018), available here. The opinion builds on Judge Weinstein’s more extensive opinion in United States v. Trotter concerning violations of supervised release for marijuana use. As Judge Weinstein urged in Trotter, practitioners should move to modify or terminate supervised release where the defendant’s only violations consist of minor infractions. (Indeed, Judge Weinstein suggests in Trotter that practitioners should move for termination of supervised release in all cases where the defendant has completed one year of supervision.)

As is customary with Judge Weinstein, the opinion’s introduction provides an excellent synopsis of its analysis:

The instant memorandum considers [an] important issue in supervised release: what to do with

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Categories: sentencing, sentencing findings, supervised release

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Tuesday, July 10th, 2018

Judge Weinstein Urges More Frequent Termination of Supervised Release (Including for Marijuana Users)

Last week Judge Weinstein issued a remarkable opinion, available here, terminating supervised release for a defendant who, apart from habitual marijuana use, has committed no crimes since his release from prison. See United States v. Trotter, No. 15-cr-382, DE 543 (E.D.N.Y. July 5, 2018). The lengthy-but-readable opinion is worth reading in its entirety, particularly for those not intimately familiar with the law governing supervised release.

The opinion in Trotter made headlines for Judge Weinstein’s commitments to avoid punishing supervisees for marijuana use, and to terminate supervised release for marijuana users who are otherwise rehabilitated.  Equally relevant to practitioners, however, is Judge Weinstein’s more general critique of excessive supervision. Particularly important is Judge Weinstein’s suggestion that the defense bar move more frequently for termination of supervised release in the interest of justice pursuant to 18 U.S.C. § 3583. Indeed, Judge Weinstein urges practitioners to move for termination of supervised release …

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Categories: marijuana, sentencing, sentencing findings, supervised release

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Categories: marijuana, sentencing, sentencing findings, supervised release

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Tuesday, December 12th, 2017

Second Circuit Vacates Above-Guidelines Illegal Reentry Sentence As Procedurally and Substantively Unreasonable

Today the Second Circuit issued an opinion vacating a 60-month illegal reentry sentence as both procedurally and substantively unreasonable. The opinion in United States v. Latchman Singh, No. 16-1111 (Kearse, Hall, Chin) (appeal from Forrest, J., SDNY), is available here. Judge Chin’s opinion touches on a number of recurring sentencing issues, and includes an important analysis of the distinction between presenting mitigating evidence and avoiding responsibility for one’s crimes.

Mr. Singh pleaded guilty to one count of illegal reentry after being removed following an aggravated felony conviction, see 8 U.S.C. § 1326(b). His record includes a number of convictions for non-violent offenses, several of which occurred more than a decade ago. The 15-21 Guidelines range for Mr. Singh’s sentence reflected a 3-level reduction for acceptance of responsibility. Prior to sentencing, he wrote a letter to the district court expressing remorse his actions and explaining the pressures that …

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Categories: acceptance of responsibility, illegal reentry, procedural reasonableness, sentencing, sentencing findings, substantive reasonableness

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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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Categories: mandatory minimum, sentencing, sentencing findings, youthful offender adjudication

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Thursday, September 21st, 2017

Anthony Weiner’s Sentencing Memo

The Second Circuit’s most recent criminal opinions involve rather boutique issues. The Circuit has addressed, for example, whether a bail bond forfeiture must be vacated if a defendant dies while his appeal his pending (no), and whether the Circuit has jurisdiction to review a conviction when the defendant writes in the administrative section of the appeal form that he only seeking review of his sentence (yes).

Meanwhile, in the Southern District, Anthony Weiner’s attorneys have filed an interesting and detailed sentencing memorandum. The memo is instructive to attorneys representing defendants in child pornography cases. Of particular interest is the memo’s exhaustively researched argument section. Part I argues that the Guidelines provide an unreliable benchmark for determining the appropriate sentence in child pornography cases. Part II.A identifies aggravating factors that are often present in child pornography cases but which are absent from this case. The case discussion in …

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Categories: child pornography, forfeiture, sentencing, sentencing findings, sex offenses

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Monday, May 23rd, 2016

Remand for resentencing to consider the difference between substantive conspiracy liability and the scope of relevant conduct for guidelines purposes; Remand for resentencing under § 3582(c)(2)

The Second Circuit issued four summary orders in criminal cases today.

United States v. Rigo, 15-1914, remanded the case for resentencing. The Second Circuit held that the district court committed plain error in calculating the loss amount for the purposes of determining the guideline range. The Circuit explained that “the scope of conduct for which a defendant can be held accountable under the sentencing guidelines is significantly narrower than the conduct embraced by the law of conspiracy.” Order at 2. The “emphasis in substantive conspiracy liability is the scope of the entire conspiracy” but the guidelines are concerned with “the scope of the individual defendant’s undertaking.” Id. (emphasis in original). In other words, even if the acts of co-conspirators were foreseeable to the defendant, they do not constitute relevant conduct for guidelines purposes if they were “not within the scope of the defendant’s agreement.” Id. at 3. …

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Categories: 3582(c)(2), conspiracy, relevant conduct, Rule 11, sentencing findings

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Monday, May 16th, 2016

Second Circuit Vacates Sentence Due to Inadequate Factual Determination Regarding Application of the “Otherwise Extensive” Nature of Conduct Enhancement under U.S.S.G. § 3B1.1(a); Affirms Three Convictions in Summary Orders

In United States v. Kent, 14-2082, the Second Circuit vacated a sentence and remanded for resentencing after concluding that the District Court’s application of a 4-level enhancement under U.S.S.G. § 3B1.1(a) was not supported by adequate factual findings.  The district court determined that Mr. Kent was a leader or organizer of criminal activity that was “otherwise extensive” within the meaning of U.S.S.G. § 3B1.1(a)  and applied the 4-level enhancement.  Many of the facts relied upon by the district court in making this determination – including the amount of money Mr. Kent made and the number of victims of the scheme – already were taken into account by enhancements under U.S.S.G. § 2B1.1(b)(1)(H) (the loss amount enhancement) and U.S.S.G. § 2B1.1(b)(2)(B) (the number of victims enhancement).  The Second Circuit explained that relying on loss amount and the number of victims to find that criminal activity was “otherwise extensive” for …

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Categories: conscious avoidance, double counting, sentencing findings

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Thursday, May 5th, 2016

District Court Plainly Erred by Using a Guideline Unsupported by the Facts, Even Where the Parties Stipulated to that Guideline in a Plea Agreement

In United States v. Rendsland, Docket No. 14-3942-cr, a summary order issued today, the Circuit ruled that the district court committed plain error in relying on U.S.S.G. § 2A2.2 (“Aggravated Assault”) to calculate Mr. Rendsland’s Guideline range, rather than § 2A2.4 (“Obstructing or Impeding Officers”), even though the parties had stipulated that this was the applicable Guideline in a plea agreement. (Disclosure: Ed Zas of the Federal Defenders of New York submitted an Amicus brief raising this argument on Mr. Rendsland’s behalf). This was so because nothing in the record showed that Mr. Rendsland committed “aggravated assault,” defined in Application Note 1 of § 2A2.2 as a “felonious assault that involved (A) a dangerous weapon with intent to cause bodily injury (i.e., not merely to frighten) with that weapon; (B) serious bodily injury; (C) strangling, suffocating, or attempting to strangle or suffocate; or (D) an …

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Wednesday, December 16th, 2009

Role Away

United States v. Labbe, No. 08-0673-cr (2d Cir. December 4, 2009) (Newman, Pooler, Katzmann, CJJ)

About a week before Labbe’s sentencing, the district court issued a written Sentencing Opinion describing the sentence it was likely to impose. The Opinion included a 4-level role reduction for Labbe’s “minimal” participation and announced that “Labbe is hereby sentenced to … 57 months.” The Opinion noted, however, that this was “subject to modification at the sentencing hearing.”

Before sentencing, the government sent a letter to the court objecting to the role reduction, but at the sentencing hearing itself the defense focused its arguments primarily on the loss calculations, apparently assuming that the judge had decided to keep the role reduction. The judge asked the government a few questions about the relative participation levels of Labbe and his co-conspirators, then announced that the “government’s argument and its reading of the guidelines with respect to the …

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