Navigation

Archive | sentencing

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
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 …

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

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

Continue Reading
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

…
Posted by
Categories: mandatory minimum, sentencing, sentencing findings, youthful offender adjudication

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

Continue Reading
Wednesday, November 1st, 2017

Letter in Support of Mandatory Minimum Sentencing Reform

Yesterday the Federal Defenders Legislative Reform Committee sent a letter in support of legislation to reform federal mandatory sentencing laws. The letter, available here, urges the Senate Judiciary Committee to support two modest attempts to reduce mandatory minimums and constrain unchecked prosecutorial charging power: (1) The Sentencing Reform and Corrections Act of 2017 (S. 1917) and (2) The Smarter Sentencing Act of 2017 (S. 1933). In detail, the letter describes how mandatory minimums are used to coerce low-level offenders into forgoing their trial rights, while enabling more serious offenders to avoid the punishments that Congress.

The letter’s subject headings offer a helpful synopsis of the Legislative Reform Committee’s position:

I.  The Human and Financial Costs of the Current Mandatory Minimum Laws Are  Unjustified.

II. Real Reform Is Necessary to Prevent the Use of Mandatory Minimums for Purposes for Which They Were Not Intended.

A. Sentences Intended for Kingpins and

…
Posted by
Categories: mandatory minimum, sentencing

Posted By
Categories: mandatory minimum, sentencing

Continue Reading
Tuesday, October 31st, 2017

Circuits Rule that Hobbs Act and 924(c) Convictions Are Not Predicates Under the ACCA and COG.

This month two circuits held, respectively, that offenses cannot serve as predicates under the Career Offender Guideline or the Armed Career Criminal Act (ACCA) because they can involve force against property as well as against persons.

The Tenth Circuit held that robbery under the Hobbs Act, 18 U.S.C. § 1951, is not a crime of violence under the Career Offender Guideline (COG), U.S.S.G. § 4B1.2. See United States v. O’Connor. The enumerated clause of the COG identifies “robbery” as a crime of violence. The Tenth Circuit held that the elements of this generic offense include the use or threatened use of force against a person, but not against property. Hobbs Act robbery, by contrast, can involve “actual or threatened force, or violence, or fear of injury, immediate or future, to . . . [a] person or property.” 18 U.S.C. § 1951(b)(1) (emphasis added). The COG’s definition of robbery …

Posted by
Categories: 924(c), career offender, categorical approach, crime of violence, Johnson, robbery, sentencing

Posted By
Categories: 924(c), career offender, categorical approach, crime of violence, Johnson, robbery, sentencing

Continue Reading
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 …

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

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

Continue Reading
Tuesday, September 12th, 2017

New Circuit Opinion on Old Career Offender Residual Clause

Yesterday the Circuit re-decided United States v. Jones. The panel held that in light of the Supreme Court’s recent decision in United States v. Beckles, armed New York first-degree robbery is categorically a crime of violence under the residual clause of the pre-2016 Career Offender Guideline. See U.S.S.G. § 4B1.2 (2015). (The Guidelines have since been amended to remove the residual clause.) The opinion is available here.

In a concurring opinion, two of the panel’s three judges confirmed that New York robbery is not a violent felony under ACCA’s elements clause. Specifically, the concurrence observed that the Circuit’s decision in United States v. Spencer, 955 F.2d 814, 820 (2d Cir. 1992), which had held that New York attempted third-degree robbery was a crime of violence under the Career Offender Guideline’s elements clause, had been “abrogated” by Johnson v. United States, 559 U.S. 133 (2010) (“2010 Johnson…

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
Monday, August 28th, 2017

Second Circuit Vacates Sentence Based on Erroneous PSR

Today, in United States v. Genao, the Second Circuit vacated an illegal reentry sentence as procedurally unreasonable where the sentencing court relied on a factually erroneous presentence investigation report (PSR) to calculate the defendant’s Guidelines range. The opinion is notable both for its analysis of whether an offense under the New York burglary statute is a “crime of violence” and its determination that the district court failed to satisfy § 3553(c)’s requirement that it provide reasons for its sentence in open court.

You can access the opinion here.

Roman Bartolo Genao was convicted of illegal reentry, and had previously been convicted in New York state of first-degree robbery and first-degree burglary. At the time of Genao’s sentencing, the Guidelines imposed a 16-level enhancement for illegal reentry sentences where the defendant had previously been convicted of a “crime of violence.” (This Guideline has since been revised to impose enhancements based …

Posted by
Categories: 3553(c), Johnson, plain error, procedural reasonableness, sentencing

Posted By
Categories: 3553(c), Johnson, plain error, procedural reasonableness, sentencing

Continue Reading
Monday, April 3rd, 2017

Unanimous Supreme Court: District Court Can Consider Length of Consecutive Sentence in Imposing Sentence on the Underlying Offense

Today in Dean v. United States, the Supreme Court unanimously held that a district court may consider the consecutive mandatory sentence required under 18 U.S.C. 924(c) when imposing the sentence to be served on the underlying offense.  You can access the opinion here.  The length of the mandatory consecutive sentence bears on the factors to be considered under 18 U.S.C. 3553(a), such as the need to protect the public and to provide adequate deterrence.

“Nothing in § 924(c) restricts the authority conferred on sentencing courts by § 3553(a) and the related provisions to consider a sentence imposed under § 924(c) when calculating a just sentence for the predicate count,” the Court explained.  In other words, “nothing . . . prevents a district court from imposing a 30-year mandatory minimum sentence under § 924(c) and a one-day sentence for the predicate violent or drug trafficking crime, provided those terms …

Posted by
Categories: consecutive, mandatory minimum, sentencing

Posted By
Categories: consecutive, mandatory minimum, sentencing

Continue Reading