Archive | Uncategorized

Thursday, May 23rd, 2024

What categorical approach?

Today, in Brown v. United States, the Supreme Court held that state drug convictions count as ACCA predicates if they involved a drug that was on the federal drug schedules at the time of the state conviction. In Brown, legislatures had eliminated two substances from the relevant drug schedules – hemp and ioflupane – between the time of the petitioners’ original cases and their ACCA cases. Thus, the state and federal drug schedules did not match at the time of their ACCA cases. The petitioners argued that, under the categorical approach, their prior state cases were not ACCA predicates.

The Supreme Court rejected this argument, finding that the drug schedules at the time of the ACCA conviction are essentially irrelevant. In reaching this decision, Justice Alito highlighted the facts of the petitioners’ prior drug offenses at length, emphasizing that the petitioners had possessed marijuana and cocaine, “not hemp …

Posted by
Categories: Uncategorized

Posted By
Categories: Uncategorized

Continue Reading
Friday, April 12th, 2024

Yet again, the Second Circuit vacates an unexplained condition of supervised release.

Yes, the Second Circuit means it! If the district court doesn’t explain why a special condition of supervised release is required in a particular case, the Circuit will vacate the condition.

Today, yet again, the Second Circuit vacated a condition of supervised release because the district court did not explain the reasons for imposing the condition or make an individualized assessment it was necessary for Mr. Syed. In Mr. Syed’s case the vacated condition was broad electronic and GPS monitoring, without any reasonable suspicion required. In that way Syed is a lot like United States v. Salazar, decided last year.

But, in a broader sense, Syed is just the latest in a string of Second Circuit decisions vacating conditions of supervised release. See also United States v. Alex Oliveras, No. 21-2954 (2d Cir. March 15, 2024), United States v. William Jimenez, No. 21-2954 (2d Cir. March 18, 2024), …

Posted by
Categories: Uncategorized

Posted By
Categories: Uncategorized

Continue Reading
Friday, March 8th, 2024

Mistaken Expectation of a Lower Sentence Does Not Render Guilty Plea Involuntary or Unintelligent.

In United States v. Delvalle, No. 22-1539-cr (2d Cir. Mar. 5, 2024) (per curiam), the Court reiterated its longstanding rule that a guilty plea is not rendered involuntary or unintelligent simply because the defendant expected to receive a lower sentence than he ultimately received.

Delvalle pleaded guilty to a drug conspiracy. The parties estimated that his Guidelines range was 360-480 months, with a statutory minimum term of 60 months. During the plea colloquy, the defendant acknowledged that he had not been “promised” a below-Guidelines sentence, but nevertheless thought it was a “big maybe.” He was disappointed at sentencing when the judge imposed 420 months of imprisonment.

On appeal, he argued that his plea was involuntary because he believed that he would receive a below-Guidelines sentence, and that this belief influenced his decision to plead guilty. The Circuit rejected this argument, “reiterat[ing] the well settled rule that a defendant’s guilty plea …

Posted by
Categories: Uncategorized

Posted By
Categories: Uncategorized

Continue Reading
Friday, December 8th, 2023

New York Narcotics Convictions Still Aren’t Federal Controlled Substance Offenses

In United States v. Chaires, No. 20-4162 (2d Cir. Dec. 7, 2023) (per curiam), the Second Circuit (Carney, Sullivan, and Menashi) remanded for resentencing, on plain error review, where the defendant was sentenced as a career offender based on New York controlled substance predicates. As our dear readers are well-aware, Chaires follows in the footsteps of several important Second Circuit cases holding that state drug crimes are categorically overbroad – and cannot be used to enhance a sentence – because they punish possession of more substances than the federal Controlled Substance Act (CSA). To recap:

  • United States v. Townsend, 897 F.3d 66 (2d Cir. 2018). In this leading case, in addition to holding that the categorical approach applies to the controlled-substance-offense determination, the Court ruled that, because N.Y.P.L. 220.31 punishes possession of human chorionic gonadotropin, but the CSA does not, it cannot serve as a predicate for offense-level-enhancement
Posted by
Categories: Uncategorized

Posted By
Categories: Uncategorized

Continue Reading
Tuesday, October 17th, 2023

Second circuit affirms 45-year sentence despite an “inexcusable” error

In United States v. Gates, the Second Circuit today affirmed a 45-year sentence for a person with no criminal history, who was convicted of three counts related to sexual exploitation of her child based on five images found on the child’s father’s phone. (Even though the child’s father, unlike Gates, had thousands of additional images of child pornography as well as a criminal history, he received the same sentence as Gates). The Circuit appeared completely unmoved by her argument that her sentence was substantively unreasonable, failing to engage with or even mention any facts about Gates’s personal background.

The Circuit, however, did find that the district court erred in at least two ways. First, the Circuit found that the district court improperly counted a conspiracy count as a separate group. But, the Circuit said, this error was harmless because the offense level was so high that it would still …

Posted by
Categories: Uncategorized

Posted By
Categories: Uncategorized

Continue Reading
Wednesday, September 20th, 2023

Second Circuit Affirms 18 U.S.C. § 115(a)(1)(B) Conviction And Sentence For Defendant Who Posted “Kill Your Senators” Video Online

In United States v. Hunt, No. 21-3020 (2d Cir. Sept. 20, 2023) (Walker, joined by Parker and Bianco), the Circuit affirmed Hunt’s conviction and sentence for threatening to assault and murder United States officials, in violation of 18 U.S.C. § 115(a)(1)(B), based on Hunt’s online posting of a video entitled “Kill Your Senators.” In the video, which was posted on January 8, 2021, Hunt said, among other things: “We need to go back to the U.S. Capitol when all of the Senators and a lot of the Representatives are back there and this time we have to show up with our guns and we need to slaughter these motherfuckers …. If anybody has a gun, give me it. I will go there myself and shoot them and kill them.”

The Circuit held:

  1. The evidence was sufficient. In so holding, the Circuit rejected Hunt’s argument for application of the “constitutional
Posted by
Categories: Uncategorized

Posted By
Categories: Uncategorized

Continue Reading
Friday, August 11th, 2023

Another Day, Another 922(g) Section Found Unconstitutional under Bruen: this time it’s 922(g)(3) prohibiting an “unlawful” drug user from having a gun

This week, in United States v. Daniels, the Fifth Circuit held that a person’s conviction under 922(g)(3) was unconstitutional following Bruen. The facts of Daniels are straightforward: Daniels was found with guns and marijuana in his car and then admitted he was a habitual marijuana user. He was charged and convicted of violating Section 922(g)(3). The Fifth Circuit reversed, holding that history and tradition did not justify disarming a “sober citizen based exclusively on his past drug usage.”

Although 922(g)(3) isn’t a a common charge, there is helpful language in the Daniels opinion for Bruen motions under 922(g)(1). And, the steady drumbeat of 922(g) reversals will hopefully give judges pause in relying on pre-Bruen decisions without a careful analysis.

In Daniels, the government relied on the same language and history that they point to for 922(g)(1) cases. The Fifth Circuit roundly rejected those arguments. The Circuit …

Posted by
Categories: Uncategorized

Posted By
Categories: Uncategorized

Continue Reading
Thursday, July 20th, 2023

Plaintiff can pursue punitive damages related to his unlawful state supervision

In Aponte v. Perez, No. 20-2186 (2d Cir. July 20, 2023), the Second Circuit rules largely in favor of the plaintiff-appellant, who brought a civil rights suit after he was wrongfully subjected to post-release supervision.

 In 2000, plaintiff Felix Aponte was sentenced in New York State court to 8 years in prison for robbery. After sentencing, the New York State Department of Correctional Services (DOCS) “administratively added a five-year term of post-release supervision” (PRS). This practice seems obviously unconstitutional and, in 2006, the Second Circuit so held. Aponte was eventually resentenced in 2008.

In the meantime, Aponte was subject to this illegal supervision term. He was imprisoned for violating the terms of his (illegal) supervision.

Aponte, acting pro se, brought suit under 42 U.S.C. § 1983 against DOCS and others, seeking damages related to his unlawful supervision and incarceration.

The district court found a violation of Aponte’s due …

Posted by
Categories: Uncategorized

Posted By
Categories: Uncategorized

Continue Reading
Tuesday, June 27th, 2023

By a 6-3 vote, the Supreme Court holds that a federal prisoner who has already filed (and exhausted) a motion under 28 U.S.C. § 2255 can’t file another postconviction motion to raise a claim of legal innocence based on an intervening statutory-interpretation-decision of  the Supreme Court.  Section 2255(h) bars second or successive 2255 motions based on non-constitutional claims; and the “saving clause” of § 2255(e) doesn’t authorize a petition for a “writ of habeas corpus,” under § 2241, for claims barred by § 2255(h). Jones v. Hendrix, Sup. Ct.  21-857, __U.S.. __  (June 22, 2023).

Thomas, J.,  delivered the Court’s opinion. Sotomayor and Kagan, JJ., filed a dissenting opinion. Jackson, J.,  filed a dissenting opinion.

Background

In 2000, petitioner Marcus DeAngelo Jones was convicted of two counts “of unlawful possession of a firearm by a felon, in violation of 18 U. S. C. § 922(g)(1)” and sentenced to 327 months’ imprisonment (a little over 27 years’). Op. at 2. After losing his direct appeal (in 2001), “Jones filed a timely § 2255 motion to vacate, set aside, or correct his sentence, which resulted in the vacatur of one of his concurrent § 922(g) sentences but no other relief.” Op. at 2. Jones exhausted his first § 2255 motion in 2006. Id.

“Years later, in Rehaif v. United States” the Supreme Court held “that a defendant’s knowledge of the status that disqualifies him from owning a firearm is an element of a § 922(g) conviction,” …

Posted by
Categories: Uncategorized

Posted By
Categories: Uncategorized

Continue Reading
Sunday, June 11th, 2023

Circuit reverses conviction, orders Franks hearing

In a big defense win, last week, the Second Circuit reversed Anthony Molina’s conviction of five counts of robbery and brandishing, for two independent reasons. Judge Raggi wrote the decision. First, the Circuit held that the trial court should have conducted a Franks hearing and remanded for the court to hold one. The facts underling this issue are complicated. But, in short, the government conceded that there were errors in the warrant applications – these errors ranged from using the incorrect date of the crime, to attributing phone numbers to the wrong people, to stating there was evidence co-conspirators had communicated close in time to the robberies, when the government did not have evidence of that. The opinion explains in detail how these errors flowed together to give the magistrate the wrong impression about probable cause. Some of the highlights of the decision on this issue:

  • The government argued unsuccessfully
Posted by
Categories: Uncategorized

Posted By
Categories: Uncategorized

Continue Reading
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 …

Posted by
Categories: Uncategorized

Posted By
Categories: Uncategorized

Continue Reading