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Section 3014(a) of Title 18, enacted as part of the Justice for Victims of Trafficking Act of 2015 (“JVTA”), requires district courts to impose a $5,000 special assessment on “non-indigent” persons convicted of certain sex- and trafficking-related offenses.¹ Carlos Rosario is an indigent person represented by this Office. After he pleaded guilty to three qualifying offenses, the district court considered his future earning capacity, concluded that he was “non-indigent” in light of that capacity, and imposed the $5,000 special assessment. Rosario argued on appeal that this was error.

The Circuit affirms Rosario’s sentence. United States v. Rosario, No. 20-2268 (2d Cir. July 29, 2021). Writing for himself and Judge Sack, Judge Park concludes that “the ordinary meaning of ‘indigent’ encompasses not only a lack of present resources, but also includes a forward-looking assessment of the defendant’s ‘means’ or ability to pay.” This reading, moreover, is consistent with “all …

Torri McCray was charged under 21 U.S.C. § 841(b)(1)(B)(vi) for distributing 10 grams or more of “butyryl fentanyl,” an analogue of fentanyl under the ordinary meaning of the term “analogue.” As Webster’s New Collegiate Dictionary puts it, an “analogue” in the relevant chemistry context is “a chemical compound structurally similar to another but differing often by a single element of the same valence and group of the periodic table as the element it replaces.”

Everyone, including McCray, agrees that butyryl fentanyl is an analogue of fentanyl under this definition. And if this definition governed for purposes of § 841(b)(1)(B)(vi), then McCray would be subject to a 5-year mandatory minimum: Such a sentence is required when the defendant distributes “10 grams or more of a mixture or substance containing a detectable amount of any analogue of” fentanyl.

But McCray disagrees that the ordinary definition of “analogue” applies to § 841(b)(1)(B)(vi). He …

In Lange v. California, No. 21-18, 594 U.S. __ (June 23, 2021), the Supreme Court holds that pursuit of a fleeing misdemeanor suspect does not categorically qualify as an exigent circumstance that permits police to enter a home without a warrant. That is: if a New York police officer tries to stop and ticket you for littering, and you run away, the officer cannot necessarily chase you into your home.

But sometimes, probably even most times, he can. Per the Supreme Court: “A great many misdemeanor pursuits involve exigencies allowing warrantless entry,” so it “turns on the particular facts of the case.”

In Lange, the defendant drove past California highway patrol officers “listening to loud music with his windows down and repeatedly honking his horn.” This prompted officers to follow Lange and then signal for him to pull over. By the time police turned on their signal, Lange …

The issue in Edwards v. Vannoy, decided May 17, 2021, was whether the Supreme Court’s decision in Ramos v. Louisiana, 140 S. Ct. 1390 (2020), will apply retroactively to cases on federal collateral review.  Ramos is the case which decided that unanimous jury verdicts are required in state felony cases, thus outlawing the non-unanimous jury practices that existed in only two states – Louisiana and Oregon.  In a 6-to-3 vote, the Supreme Court decided against retroactive application, which means, as Justice Kagan tells us in dissent, that Mr. Edwards, unlike Mr. Ramos, “will serve the rest of is life in prison based on a 10-to-2 jury verdict.”

As many of us recall, when the Supreme Court promulgates a new rule of criminal procedure, it applies not just to future cases but also to cases that are already on direct appeal.  See Griffith v. Kentucky, 479 U.S. 314 …

In United States v. Gilliam, the Second Circuit (Nardini, joined by Katzmann and Wesley), held that drug-related murder, in violation of 21 U.S.C. § 848(e)(1)(A), is not a “covered offense” for purposes of First Step Act resentencing.

Gilliam killed a rival drug dealer and pleaded guilty to § 848(e)(1)(A), which punishes “any person engaging in an offense punishable under [21 U.S.C. § 841(b)(1)(A)] … who intentionally kills or counsels, commands, induces, procures, or causes the intentional killing of an individual and such killing results.” The district court (Gleeson, EDNY) sentenced him to 528 months.

Gilliam moved for a sentence reduction under § 404(b) of the First Step Act, which provides: “A court that imposed a sentence for a covered offense may … impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act … were in effect at the time the covered offense was committed.” …

In United States v. Chestnut, the Second Circuit (Sullivan, joined by Cabranes and Raggi) dismissed as moot a defendant’s appeal from the denial of his compassionate release motion, where the defendant had completed his sentence, and had “neither requested that the district court reduce his term of [supervised release] nor advanced any arguments to suggest that such a reduction is warranted.”

Chestnut sought compassionate release based on (i) his need to care for his children after their removal from their mother’s custody; and (ii) his medical conditions, which placed him at risk of severe illness from COVID-19. The district court (Daniels, SDNY) denied the motion. While Chestnut’s appeal was pending, he was released from BOP custody.

The Circuit concluded that the appeal was moot because Chestnut only sought a reduced prison sentence, and his prison sentence was now complete. In some cases, the Circuit said, “an appeal challenging a …

Last week, the Circuit closed the door on any Davis issue relating to 18 U.S.C. § 111(b), holding that 18 U.S.C. § 111(b) is a crime of violence. Even though this was a matter of first impression for the Circuit, it issued a per curiam decision without ordering full briefing (or indeed any briefing by the government). Instead, it simply denied a motion for a certificate of appealability to Mr. Gray finding that the “use” of a dangerous weapon and the infliction of bodily injury in the course of a § 111(b) assault or battery necessarily involves the use of physical force as defined in 18 U.S.C. § 924(c)(3)(A).

Only one bit of small good news: the Court did not address whether 18 U.S.C. § 111(a) is a crime of violence, so that remains open.…

Last week, the Circuit rejected an argument that the International Parental Kidnapping Crime Act was unconstitutionally vague as applied to a father who refused to bring his United States-citizen children to the US from Yemen to visit with their mother, even though the children had been living in Yemen for a number of years and he had not abducted them.

The facts, briefly

Mr. Houtar and his ex-wife have two daughters who were born in the United States. Both parents left their daughters in Yemen for some time, while they returned (separately) to the United States. While here, Mr. Houtar’s ex-wife sought custody of the girls, and the Family Court ordered Mr. Houtar to bring them back to the United States to visit with their mother. Instead, Mr. Houtar returned to Yemen himself. He might have remained there had he not applied for a new United States passport, triggering an …

In a decision on Thursday, the Second Circuit upheld Betsy Ramos’s two-year sentence for a violation of supervised release, finding that a district court may take recidivism enhancements into account in determining whether the maximum potential term of imprisonment for a crime is more than 20 years, qualifying the crime as a Grade A violation, under 7B1.1 (a)(1)(B).

The facts underlying the Circuit opinion in this case are tragic. In 1998, Ms. Ramos was on supervised release following a drug courier conviction when her boyfriend, who physically abused Ms. Ramos, shot and killed a police officer. Her abusive boyfriend was also killed. For reasons the Circuit opinion does not fully explain, Ms. Ramos was convicted of reckless manslaughter and served more than 20 years in state custody. When Ms. Ramos was granted parole, she was charged with a violation of her supervised release based on the manslaughter conviction, and sentenced …