Federal Defenders of New York Second Circuit Blog

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

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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 … Read more

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

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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 … Read more

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

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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 … Read more

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).

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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 … Read more

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.

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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 … Read more

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

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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 … Read more

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

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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 … Read more

A sealed sentencing conducted by videoconference, which was not accessible to the public, does not implicate Rule 53’s ban on broadcasting judicial proceedings

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In United States v. Sealed Defendant One, 2d Cir. No. 21-118 (Sep. 21, 2022), a Panel of the Court (Newman, Chin, and Sullivan), in an opinion by Judge Sullivan, principally ruled that a sealed sentencing proceeding, which occurred via Skype videoconferencing during the COVID-19 pandemic, did not violate Rule 53’s bar on the “broadcasting” of … Read more

Panel holds, over dissent, that non-disclosure of 5,000 pages of complainant’s psychiatric records is not an unreasonable application of Brady

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The 2010 New York trial at issue in McCray v. Capra, 18-2336 (2d Cir. Aug. 17, 2022), an appeal of a state habeas corpus denial, was a pure credibility contest: the complainant testified she was violently raped; McCray testified the encounter was consensual but the two struggled afterward when she tried to steal from him; … Read more

Factual dispute at sentencing? Object, object, and object again!

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Yesterday, in United States v. Cherimond, the Second Circuit remanded a sentence for the defense to make a fuller objection. Here’s what happened: at sentencing, the district court upwardly departed based on pending and dismissed charges. Defense counsel objected to the departure and added that the defense was “not consenting or conceding to the allegations … Read more