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Thursday, April 13th, 2023

Second Circuit holds that prison term of one year and one day for convicted fraudster is unreasonably lenient.

In Watts v. United States, Nos. 21-2925(L), 21-3028 (2d Cir. Apr. 12, 2023) (summary order), the Circuit affirmed the defendant’s convictions for various counts involving securities fraud, wire fraud, and money laundering. But, at the Government’s urging on its cross-appeal, the court vacated his sentence—which included a below-Guidelines term of imprisonment of one year and one day—as substantively unreasonable because it was  “shockingly low, or otherwise unsupportable as a matter of law.” Fortunately, the decision is an unpublished summary order, meaning that it has no precedential effect.

Watts was convicted in the Eastern District of New York (Seybert, J.), of charges that, over a four-year period, he and his co-defendants schemed to defraud investors in several publicly traded companies by artificially controlling the price and volume of traded shares in those companies. In brief, Watts and other insiders at public companies allegedly hired a Long Island “boiler room” to …

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Wednesday, March 22nd, 2023

Today, in United States v. Lewis, the Second Circuit strongly reaffirmed that the Circuit has no “categorical rule” about Fourth Amendment standing over shared spaces in multi-unit buildings. On the contrary, the Circuit noted that people who live in single-family homes should not have greater Fourth Amendment protections then people in multi-unit buildings. It counseled that courts should use an “individualized approach” to assess a person’s privacy interest over any shared spaces.

Unfortunately for Vashun Lewis, however, the Circuit still found that he hadn’t shown a reasonable expectation of privacy over a back “porch” area that led to a common stairway. (The area described as a porch seems to have been inside the building, although it is not entirely clear from the decision). The Circuit said that Lewis had “neither pointed to any relevant evidence nor made any arguments pertinent to his reasonable expectation of privacy over the porch.”…

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Friday, March 3rd, 2023

Circuit orders resentencing in light of statements that created a risk of the appearance that a defendant’s nationality impacted his sentence.

In United States v. Vasquez-Drew, No. 20-2195-cr (2d Cir. March 2, 2023) (summary order), the Second Circuit ordered the defendant resentenced before a new district judge because certain remarks the original judge made at sentencing created a “risk that a reasonable observer … ‘might infer, however incorrectly’ that Vasquez’s nationality played a role in determining his sentence.”

In sentencing the defendant, a Bolivian national, the district court (Cote, J.) stated that the sentence was “motivated by concerns about appropriate punishment, but also general deterrence,” and that it was “important” “that the people in Bolivia understand the kind of sentences that are potentially imposed here from engagement in activity to send cocaine into America.”

This decision follows an interesting and wide-ranging oral argument available here and previewed here.

Ultimately, the Circuit’s short summary order hewed closely to precedent: “[E]ven the appearance that the sentence reflects a defendant’s race or …


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Thursday, December 15th, 2022

Supreme Court Alert

The Supreme Court recently granted certiorari in four criminal cases to resolve the following questions. Note that in two of the cases, Lora and Samia, the Court will review decisions issued by the Second Circuit.

Lora v. United States, 22-49

Whether 18 U.S.C. § 924(c)(1)(D)(ii), which provides that “no term of imprisonment imposed … under this subsection shall run concurrently with any other term of imprisonment,” is triggered when a defendant is convicted and sentenced under 18 U.S.C. § 924(j).

United States v. Hansen, 22-179

Whether the federal criminal prohibition against encouraging or inducing unlawful immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), is facially unconstitutional on First Amendment overbreadth grounds.

Samia v. United States, 22-196

Whether admitting a codefendant’s redacted out-of-court confession that immediately inculpates a defendant based on the surrounding context violates the defendant’s rights …

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Wednesday, December 14th, 2022

District Court Did Not Abuse Discretion in Declining to Resentence Defendant De Novo Following Vacatur of Firearms Convictions.

In United States v. Peña, No. 20-4192 (2d Cir. Dec. 13, 2022), the Circuit ruled that the District Court did not abuse its discretion when it declined to resentence the defendant de novo following the vacatur of two firearms convictions.

Peña was convicted in 2013 of three counts charging him with conspiring to commit, and committing, murder for hire, in violation of 18 U.S.C. § 1958. He was also convicted of two counts of using a firearm to commit murder, in violation of 18 U.S.C. § 924(j). The District Court sentenced him to five concurrent terms of life imprisonment.

Peña later filed a 28 U.S.C. § 2255 motion alleging that his two § 924(j) convictions were invalid. The District Court agreed and vacated those convictions. But the court refused to resentence Peña de novo on the remaining murder-for-hire counts, concluding that resentencing would be pointless because he was …

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Tuesday, December 13th, 2022

Third Circuit holds that “loss,” for Guidelines purposes, means actual loss, not intended loss.

The Sentencing Guidelines provide that the base offense level for certain crimes must be increased based on the amount of financial “loss.” E.g., U.S.S.G. § 2B1.1(b)(1). The commentary to the Guidelines says that “loss” means the actual or intended loss, whichever is greater. Id. cmt. n.3(A).

In an important new ruling, the Third Circuit held in United States v. Banks, — F.4th —-, 2022 WL 17333797 (3d Cir. Nov. 30, 2022), that this commentary is invalid because, under Kisor v. Wilkie, 139 S. Ct. 2400 (2019), it improperly expands the plain meaning of “loss,” which refers to the actual loss only. In the court’s words:

Our review of common dictionary definitions of “loss” point to an ordinary meaning of “actual loss.” None of these definitions suggest an ordinary understanding that “loss” means “intended loss.” […]

Because the commentary expands the definition of “loss” by explaining that generally …

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Thursday, December 8th, 2022

The Second Circuit holds that N.Y. Attempted Third-Degree Sale of a Controlled Substance, N.Y.P.L. 220.39(1) is NOT a Guidelines Controlled Substance Offense

Earlier this week, on December 6, 2022, the Second Circuit held in United States v. Gibson, No. 20-3049 (2d Cir. Dec. 6, 2022), that a 2002 New York state conviction for attempted third-degree criminal sale of a controlled substance, NYPL 220.39(1) and 110.00, is not a  “controlled substance offense” under the Guidelines.

Gibson was convicted in the WDNY of bank robbery and other offenses. The PSR classified him as a career offender, based in relevant part on a 2002 New York state conviction for attempted third-degree criminal sale of a controlled substance. Gibson objected, arguing that the New York offense did not categorically involve a federally controlled substance, as required under United States v. Townsend, 897 F.3d 66 (2d Cir. 2018). Specifically, Gibson argued, New York’s 2002 drug schedules included the opium derivative naloxegol, but in 2015, the federal government had removed that substance from the federal schedules. …

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In an appeal from a district court’s decision declining to “reopen [a] detention hearing under 18 U.S.C. § 3142(f),” the Second Circuit concludes that the district court declining to reopen the detention hearing wasn’t an abuse of discretion. And the district court’s consideration of the strength of the evidence against the defendant, in weighing the bail factors listed in § 3142(g), didn’t impinge on the presumption of innocence because that’s a trial right that “has no application to a determination of the rights of a pretrial detainee.” United States v. Zhang, No. 22-1761-cr, __ F.4th ____, 2022 WL 17419594 (2d Cir. Dec. 6, 2022) (C.J.J.’s Raggi, Wesley, and Nardini).

Defendant-Appellant Zhe Zhang was indicted for participating in a successful murder-for-hire scheme. And the district court ordered him detained pending trial noting, among other things. “[t]hat the charged crime was ‘extremely serious’ and the evidence against Zhang was strong.” 2022 WL 17419594 at *2.

The defendant didn’t, however, appeal the district court’s original decision denying pretrial release. He instead appealed the court’s subsequent decision denying his motion to “reopen” the detention hearing. Id. *3.

At the original detention hearing in the district court (on May 19, 2022), there was “a brief discussion of the possibility of capital punishment,” and the government couldn’t confirm whether it would seek the death penalty “because the matter was still pending with U.S. Department of Justice in Washington, D.C..” Id. at *2. “But the court noted its understanding that, as matter of policy, ‘this Justice Department was not pursuing the death penalty” in this case. …

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Wednesday, November 30th, 2022

Third time’s a charm? Case sent back to the district court to decide if a 924(c) conviction based on an attempt to commit Hobbs Act Robbery should be vacated.

In 2004, Lawrence Savoca was convicted for using a gun during an attempt to commit Hobbs Act robbery. Since Johnson was decided in 2016, he has been trying to get this 924(c) conviction vacated in lengthy litigation involving three trips to the Second Circuit. First, the Circuit granted his request to file a successive habeas petition. But then the district court dismissed his motion, holding that it wasn’t based on a new rule of constitutional law. Second, Savoca appealed and the Second Circuit affirmed.

But, Savoca (and Ed Zas of the Federal Defenders) wasn’t done. After the Supreme Court decided Taylor, Savoca filed a rehearing petition. Yesterday, in a third ruling on this case, the Second Circuit vacated their original decision about 924(c) and remanded to the district court.

Unfortunately for Savoca though, he hasn’t fully won, at least not yet. Even though the Supreme Court has made …

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Thursday, November 3rd, 2022

Conviction Affirmed on Ground Not Initially Briefed by the Government and First Raised by Court at Oral Argument

In United States v. Graham, No. 20-832 (2d Cir. Oct. 14. 2022) (Park, joined by Walker; Pérez concurring separately in the judgment), the defendant was convicted after trial of conspiracy to commit mail, wire, and bank fraud. On appeal, she argued, inter alia, that her lawyer rendered ineffective assistance of counsel per Missouri v. Frye by failing to timely convey a pre-trial plea offer.

The facts as to counsel’s inaction were not in dispute. The government argued, in response, that the defendant needed to raise her claim in a Section 2255 motion, and had not established prejudice.

The appeal proceeded to oral argument where, it turns out, the Court had some questions about something else: waiver. More specifically, whether Graham had waived her ineffectiveness claim. Supplemental briefing was ordered.

Ultimately, the majority affirmed the conviction on the ground of . . . you guessed it . . . …

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Wednesday, September 21st, 2022

Court must provide habeas petitioner with notice and an opportunity to respond before sua sponte dismissing the petition on procedural grounds

In Ethridge v. Bell, 2d Cir. No. 20-1685-pr (Sep. 20, 2022), a Panel of the Court (Lynch, Bianco, and Nardini), in an opinion by Judge Bianco, ruled that the district court erred when it sua sponte dismissed Ethridge’s § 2254 petition, challenging his New York drug and weapons conviction on the ground that state courts erroneously denied his motion to suppress a gun seized during an allegedly unlawful search, without giving him any notice or an opportunity to be heard. Before sua sponte dismissing a petition on procedural grounds, the Circuit ruled, a district court must give the petitioner notice of its contemplated decision as well as a genuine opportunity to respond.

The district court erred in dismissing Ethridge’s petition sua sponte by invoking Stone v. Powell, 428 U.S. 465 (1976), which “held that a petitioner may not obtain [federal] habeas relief under the Fourth Amendment on the …

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