Navigation

Archive | sentencing

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 …

Posted by
Categories: drug quantity, sentencing, sentencing findings

Posted By
Categories: drug quantity, sentencing, sentencing findings

Continue Reading
Monday, August 19th, 2019

Second Circuit Vacates Excessive Community Service Condition

Today in United States v. Parkins, No. 18-1019 (2d Cir. Aug. 19, 2019), the Second Circuit—for the second time—reversed a district court’s imposition of more than 400 hours of community service as a special condition of supervised release.

Back in 2017, the defendant was sentenced to time served and three years of supervised release for his role in bank and health care fraud conspiracies. As a special condition of supervised release, the district court imposed 300 hours of community service per year, for a total of 900 hours.

The defendant appealed, arguing that this amount of community service violated 18 U.S.C. § 3583(d) because it was not reasonably related to any legitimate statutory purpose of supervised released; it involved a greater deprivation of liberty than reasonably necessary; and it was inconsistent with Sentencing Guidelines Section 5F1.3 Application Note 1, which states that community service “generally should not be imposed …

Posted by
Categories: sentencing, supervised release

Posted By
Categories: sentencing, supervised release

Continue Reading
Friday, August 16th, 2019

Second Circuit Remands For Resentencing Because of Uncertainty About Whether the Judge Understood That he Could Consider the Severity of Mandatory Consecutive Minimum Sentences In Sentencing for the Predicate Offenses.

In United States v. Brown, No. 18-834 (2d Cir. Aug. 16, 2019), the Court of Appeals reversed a 39-year sentence and remanded for resentencing because it was uncertain whether the judge understood his discretion, after the Supreme Court’s decision Dean v. United States, 137 S.Ct. 1170 (2017), to consider the severity of the mandatory consecutive minimum sentences required by §924© in determining the sentence for the predicate offenses. The case involved two robberies and two §924(c)brandishing counts, which, before the First Step Act, required 7 years for the first and 25 years for the second §924(c)count. Defense counsel had asked for one day on the predicate robberies because the mandatory consecutive sentences were so severe. Before Dean, the Second Circuit’s decision in United States v. Chavez, 549 F.3d 119 (2d Cir. 2017)had precluded such consideration. Neither case was mentioned below but the court imposed 84 months …

Posted by
Categories: 924(c), First Step Act, sentencing

Posted By
Categories: 924(c), First Step Act, sentencing

Continue Reading
Thursday, April 11th, 2019

Enhancement under U.S.S.G. 2A6.2(b)(1)(A) for “violation of a court order of protection” does not apply if the defendant was not served as required by law

In United States v. Thompson, the Second Circuit remanded for resentencing. At sentencing, the District Court determined that the two-level enhancement under U.S.S.G. 2A6.2(b)(1)(A) for “violation of a court order of protection” applied because Mr. Thompson had been “on notice of the issuance” of an order of protection. But Mr. Thompson had not been served with the order in compliance with state law. A state court ex parte order of protection may provide the basis for the application of the enhancement where that order was issued: (1) by a court with personal jurisdiction over both the petitioner and the respondent; (2) by a court with jurisdiction over the subject matter; (3) in compliance with federal procedural due process protections; and (4) in compliance with state time limits regarding notice and opportunity to be heard. Opinion at 8. Here, the court that issued the order of protection did not have …

Posted by
Categories: sentencing

Posted By
Categories: sentencing

Continue Reading
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

…
Posted by
Categories: sentencing, sentencing findings, supervised release

Posted By
Categories: sentencing, sentencing findings, supervised release

Continue Reading
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 …

Posted by
Categories: marijuana, sentencing, sentencing findings, supervised release

Posted By
Categories: marijuana, sentencing, sentencing findings, supervised release

Continue Reading
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 …

Posted by
Categories: plain error, sentencing

Posted By
Categories: plain error, sentencing

Continue Reading
Friday, May 4th, 2018

Second Circuit Vacates Imposition of Lifetime Supervised Release

It’s been a busy week for the Second Circuit. On Wednesday, the Circuit reversed a sentence imposing a life term of supervised release for a defendant who had initially been convicted of drug offenses. See United States v. Brooks, No. 16-4063 (2d Cir. 2018) (per curiam) (Parker, Lynch, Chin) (appeal from Kaplan, J., SDNY). The opinion, available here, contains great language for use at sentencings and appeals.

The defendant in Brooks had initially pled guilty to distributing and possessing with intent to distribute cocaine and heroin, in violation statutes including 21 U.S.C. § 841(a)(1). After release from prison, he was charged with numerous supervised release violations, and pled guilty to violating three conditions related to drug use. At his revocation hearing, the defendant’s attorney noted the defendant’s “serious drug problem” as a “huge underlying and contributing factor” to his violations. Neither the government nor Probation recommended a specific …

Posted by
Categories: drug distribution, procedural reasonableness, sentencing, substantive reasonableness, supervised release

Posted By
Categories: drug distribution, procedural reasonableness, sentencing, substantive reasonableness, supervised release

Continue Reading
Thursday, March 8th, 2018

Second-Degree NY Robbery Is A Crime of Violence Under the Pre-2016 Career Offender Residual Clause

Today, in a short opinion, the Second Circuit confirmed that second-degree robbery in New York is categorically a crime of violence under the residual clause of the pre-2016 Career Offender Guideline (COG). See U.S.S.G. § 4B1.2 (2015). The opinion in United States v. Smith, No. 15-3313 (2d Cir. 2018) (Winter, Cabranes, Restani) (appeal from Failla, J., SDNY), is available here.* (A separate panel reached the same conclusion, with less analysis, earlier this week in United States v. Dove.)

Its decision, the Smith panel held, was compelled by Jones II, where the Second Circuit held that under Beckles first-degree robbery is a crime of violence under the pre-2016 COG’s residual clause. See Smith, slip op. at 9-10 (“The rationale of Jones is directly applicable to this case. In New York law, the first element of second-degree robbery is the same as the first element of …

Posted by
Categories: career offender, categorical approach, crime of violence, Johnson, robbery, sentencing

Posted By
Categories: career offender, categorical approach, crime of violence, Johnson, robbery, sentencing

Continue Reading
Friday, February 23rd, 2018

New Opinion on When a § 3582(c) Guidelines Recalculation Leaves a Defendant’s Sentencing Range Unchanged

Yesterday, the Second Circuit held that a Guidelines recalculation pursuant to a motion to reduce a sentence must account for Guidelines’ grouping rules that, when applied, leave the defendant’s amended Guidelines range unchanged. See United States v. Carosella, No. 17-896 (2d Cir. 2018) (per curiam) (Walker, Lynch, Chin), opinion available here. Unfortunately, this holding  may affect a number of cases where a defendant seeks a sentencing reduction under 18 U.S.C. § 3582(c) in light of the 2014 changes to the Guidelines’ sentencing levels for drug offenses.

Mr. Carosella was convicted and sentenced in 2011 to three concurrent, 120-month terms of imprisonment for (1) conspiracy to distribute cocaine base and heroin, (2) conspiracy to commit armed robbery, and (3) conspiracy to burglarize pharmacies. In 2016, he moved to reduce his sentence pursuant to 18 U.S.C. § 3582(c), because Amendment 782 to the Guidelines lowered the base offense level for …

Posted by
Categories: 3582(c)(2), sentencing

Posted By
Categories: 3582(c)(2), sentencing

Continue Reading
Tuesday, January 9th, 2018

Federal Defender Fact Sheet Challenging Link Between Judicial Discretion and Racial Sentencing Disparities

The Federal Defenders Guidelines and Legislative Committees have released a fact sheet, available here, critiquing a recent Sentencing Commission report which concludes that racial disparities in sentencing have increased in the wake of Booker. 

In November 2017, the Sentencing Commission released a report concluding that “the gap between the sentence lengths for Black and White male offenders [has] increas[ed]”post-Booker. Opponents of discretionary sentencing have cited (and misused) this finding to argue for mandatory sentencing regimes. The Federal Defenders’ fact sheet takes issue with the Commission’s failure to address some recurrent criticisms of the statistical model it uses to reach its conclusions. These include the Commission’s failure to account for the racially disparate impacts of (1) mandatory minimums, (2) prosecutors’ charging and bargaining decision, and (3) certain sentencing guideline provisions. As the fact sheet explains:

Racial disparity is a serious problem in the federal criminal justice system.

…
Posted by
Categories: Booker, sentencing

Posted By
Categories: Booker, sentencing

Continue Reading