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Monday, January 9th, 2017

Sentencing Commission’s Interactive Sourcebook

Have you ever wanted to know the average length of sentences for a particular criminal history category for a particular guideline?  Do you want to make an argument that cases involving MDMA see a higher rate of below-guideline sentences than other drug cases, either nationally, by circuit or by district?

Then this is the website for you!

The Sentencing Commission has an interactive Sourcebook that you can use to generate tables that are not available in the printed version of the annual Sourcebook.  You can use it to compare below-guideline sentences by each primary guideline across the district or circuit, to break down the average length of sentence by criminal history category for each primary guideline, or to find the rate of below-guideline sentences for drug offenses involving different drugs.

You can access the Interactive Sourcebook here:

http://isb.ussc.gov/Login

Our friends at the Sentencing Resource Counsel Project have shared this helpful, …

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Thursday, December 8th, 2016

60-year Sentence in Child Pornography Case Is Found Substantively Reasonable

On Tuesday, the Second Circuit issued a decision in United States v. Brown. The opinion presents an interesting debate about how the federal system punishes defendants accused of child pornography charges. I encourage defense attorneys to check out both the concurrence and dissent, for some powerful arguments about the risks of unreasonable sentences in child pornography cases.

The opinion examines defendant Nathan Brown’s 60-year sentence for procedural and substantive reasonableness. The defendant pleaded guilty to 3 counts of production of child pornography in violation of 18 U.S.C. § 2251(a) and 2 counts of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).

The majority (J. Droney) begins with a recitation of some of the more egregious facts, which you can find on pp. 3-11. The basics: The defendant took sexually-explicit photos of girls, ranging in ages from 8 -12, who were in his care and then uploaded …

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Categories: child pornography, sentencing

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Tuesday, July 26th, 2016

Second Circuit Updates – July 26, 2016

The Court today issued no published decisions in criminal cases but did decide one criminal matter in a summary order: United States v. Wilson, No. 15-1991-cr (2d Cir. July 26, 2016) (Pooler, Sack, and Lynch).

Wilson had been convicted of two counts: theft of government property, which carries a ten-year maximum prison term, and aggravated identity theft, which carries a mandatory consecutive prison term of two years. The district court (Judge Scullin) imposed the statutory maximum term of 12 years. The Circuit affirmed.

At sentencing, the court correctly calculated the Guidelines range of imprisonment to be 168-210 months and imposed a lower sentence, 144 months, which the Circuit found to be procedurally and substantively reasonable.

But the Circuit noted that it was “troubled” by the district court’s conduct at sentencing. In particular, the court had stated that it felt deceived by letters submitted by the defendant’s wife and father. …

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Thursday, June 16th, 2016

Defendants bat 0-3 in the Circuit today

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

In United States v. Clare, 15-1601, the Court affirmed the defendant’s conviction on marijuana and gun charges.  Clare argued that the evidence at trial was insufficient to sustain the convictions, primarily because the cooperating witnesses were not credible. The Court rejected this argument, explaining that “the credibility of witnesses is within the province of the jury, not this Court.”  Order at 2.  In light of the remaining evidence, the Court held that a reasonable juror could have concluded that Clare was guilty beyond a reasonable doubt.  Because the evidence was sufficient, Clare’s attorney was not ineffective in failing to move for a judgment of acquittal in post-trial briefing.  The Court also affirmed the district court’s denial of a motion to suppress.

In United States v. Washington, 14-4740, the Circuit rejected the defendant’s assertion that he had been …

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Categories: comptency, sentencing, sufficiency

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Tuesday, June 14th, 2016

How Severe is Too Severe (for Production of Child Porn)?

“Serious nonhomicide crimes may be devastating in their harm[,] but in terms of moral depravity and of the injury to the person and to the public, they cannot be compared to murder in their severity and irreovocability.”  So said the Second Circuit today in United States v. Brown, No. 13-1706-cr (June 14, 2016)  (quoting the Supreme Court decision in Graham v. Flordia, 560 U.S. 48, 69 (2010)), in remanding a 60-year sentence for production of child pornography on procedural grounds that look awfully substantive.  The opinion contains must-use language for advocates at sentencing for a less-than-extreme sentence in any non-homicide case.

The majority opinion (written by J. Pooler with J. Sack signing on) found that the District Court (J. Sharpe, NDNY) may have misunderstood certain facts in imposing a virtual life sentence for photographing and disseminating sexual images of three young girls and possessing thousands of other images of …

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Categories: child pornography, procedural reasonableness, sentencing, substantive reasonableness, Uncategorized

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Wednesday, May 25th, 2016

Judge Block Issues Opinion Calling for Reconsideration of Collateral Consequences for Felony Convictions and Highlighting the Role Collateral Consequences Should Play in 3553(a) Analysis

Senior Eastern District Judge Frederic Block issued a 42-page opinion in United States v. Nesbeth, 15-CR-18(FB),  calling for a close reexamination of the collateral consequences that follow felony convictions, the ways these consequences hamper rehabilitation efforts, and their inclusion as a factor in determining the appropriate sentence under 18 U.S.C. 3553(a).  (N.B. Ms. Nesbeth was represented by Amanda David and the Eastern District Office of the Federal Defenders of New York.)

Following a jury trial in the case, Judge Block imposed a one-year probationary sentence in a case with a guidelines range of 33-41 months.  He then issued the lengthy opinion because “sufficient attention has not been paid at sentencing” to the many automatic collateral consequences that flow from a defendant’s felony conviction.  Many of these consequences, he wrote, “serve no useful function other than to further punish criminal defendants after they have completed their court-imposed sentences” but their …

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Monday, May 2nd, 2016

Second Circuit rejects claims that District Court erred in limiting cross-examination of prosecution witness and committed various procedural errors at sentencing.

United States v. Rodriguez, No. 14-4267 (2d Cir. Apr. 27, 2016) (Leval, Droney, and Engelmayer).

Rodriguez was convicted by a jury of charges of racketeering conspiracy and conspiracy to distribute narcotics. He argued on appeal that the district court erred by disallowing certain cross-examination of a key prosecution witness, and that the district court committed various procedural errors at sentencing. The Court affirmed.

(a) Cross-examination.

Before trial, the government moved to preclude the defense from cross-examining a key government witness at trial about certain sexual offenses he had committed. Defense counsel argued that the evidence bore upon the witness’s credibility but the district court excluded it under Fed. R. Evid. 403.

The Circuit held that the district court had properly balanced the relevant factors under Rule 403 and had noted that the witness disclosed his sexual misconduct to the government, which undermined the defense’s argument that his sexual …

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Categories: Rule 403, sentencing, Uncategorized

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Thursday, March 24th, 2016

SDNY Update: Judge Kaplan Finds Career Offender Guideline Range Too High, Imposes Sentence Based on Offense-Specific Guideline

Yesterday in the SDNY, Judge Lewis A. Kaplan found that the career offender guidelines overstated the seriousness of the offense in a case involving a conviction under 21 U.S.C. 841(b)(1)(C), and that a sentence within the career offender guideline range of 151-188 months would have resulted in a sentence greater than necessary to achieve the statutory sentencing objectives. Instead, Judge Kaplan imposed a sentence within the 30-37 month guideline range that would have applied, under U.S.S.G. 2D1.1, absent the career offender guideline. The case was United States v. John Cole, 15 Cr. 197 (LAK).

 …

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Wednesday, March 16th, 2016

Second Circuit Updates – March 16, 2016 – Home Confinement as Condition of Supervised Release, Sentencing Enhancement for Using Gun in a Robbery, Scope of Cross Examination

Three short summary orders today:

First up, United States v. Fiume: In this case, the sentencing court imposed “GPS tracking” as a condition of Mr. Fiume’s supervised release, but never stated that it was also imposing home detention, a “separate and additionally burdensome condition.” Nonetheless, a condition of home detention appeared in Mr. Fiume’s written judgment. The circuit vacated the home detention condition and remanded for the written judgment to be corrected. The circuit otherwise upheld Mr. Fiume’s 10-month prison sentence as reasonable.

Next up, another sentencing case, United States v. Crum. Here, Mr. Crum argued that the sentencing court should not have enhanced his weapon possession sentence on the basis that the weapon had been used in a robbery. The circuit disagreed, finding the enhancement was not clearly erroneous based on a witness’s 911 calls about a gunpoint robbery by two men, one wearing black and one …

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Categories: cross-examination, sentencing, supervised release

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Sunday, June 3rd, 2012

Cash Cow

United States v. Wagner-Dano, No. 10-4593-cr (2d Cir. May 14, 2012) (Winter, Livingston, CJJ, Rakoff, DJ)

Melissa Wagner-Dano was a bookkeeper in upstate New York, where she worked for a small town and two large dairy farm cooperatives. She stole more than $1 million from her employers through unauthorized withdrawals from their bank accounts, using used the money for various personal projects. Wagner-Dano covered her tracks by transferring funds among the employers’ accounts. As the scheme unraveled, she blamed the missing funds on computer errors, then repaid some of the money from her personal bank account. Finally, she threw in the towel, admitted her crime and pled guilty to wire fraud.

On appeal, she claimed that several errors in her presentence report rendered her 78-month, top-of-the-range sentence procedurally unreasonable. Wagner-Dano had detailed these objections to the Probation Department, which had explained them in the addendum to the report, but …

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Categories: plain error, sentencing, Uncategorized

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Tuesday, August 19th, 2008

Ratio Days

United States v. Keller, No. 07-3330-cr (2d Cir. August 14, 2008) (Miner, Cabranes, CJJ, Berman, DJ)

This case provides an important clarification of the procedure that the court set out earlier this year in United States v. Regalado, 518 F.3d 143 (2d Cir. 2008). In that case, the court held that a remand was warranted on appeals of pre-Kimbrough crack sentencings where the defendant did not ask for a variance based on the 100-to-1 penalty ratio, because there would be no way for the circuit to know whether the district court would have imposed a different sentence if it knew that it had the discretion to do so.

Here, the district judge gave a two-level sentence reduction to match the anticipated amelioration of the crack sentencing guidelines, but did not specifically acknowledge its discretion to consider the crack-powder sentencing disparity as the basis for imposing a non-guideline sentence. The circuit …

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Categories: crack, regalado, sentencing, Uncategorized

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