Federal Defenders of New York Second Circuit Blog

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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

Over dissent, sentencing enhancement for body-armor upheld even though person didn’t know a co-conspirator was wearing body armor

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After a trial, Anael Sainfil was convicted of bank robbery on a theory that he was the lookout, who stayed outside the bank. At sentencing, the court enhanced his guidelines because a co-conspirator, who entered the bank, wore a bulletproof vest. On appeal, two judges upheld the enhancement, saying that even though Mr. Sainfil didn’t … Read more

Second Circuit: State Court’s Erroneous Denial Of Defendant’s Peremptory Strike Is Not Grounds For Federal Habeas Corpus Relief

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In Murray v. Noeth, No. 20-3136 (2d Cir. Apr. 26, 2022), the Circuit (Nardini, joined by Sack and Park), held that a state trial court’s erroneous denial of a defendant’s peremptory strike does not violate the federal Constitution under Rivera v. Illinois, 556 U.S. 148 (2009), and therefore cannot support federal habeas corpus relief. Murray … Read more

Circuit affirms denial of Rule 33 motion on Brady grounds, finding lack of prejudice, but expresses “skepticism” that DOJ’s Narcotic and Dangerous Drug Section was not “part of the prosecution team” in “unusual case”

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When multiple law enforcement agencies or subdivisions are involved in a case, who is “part of the prosecution team” for Brady purposes? In United States v. Hunter, Nos. 18-3074, 18-3489, & 19-790 (2d Cir. Apr. 20, 2022) (C.J.J. Cabranes, Raggi, and Korman (sitting by designation)), the Circuit affirmed the district court’s denial of Rule 33 motions … Read more

Evidentiary Errors Prompt Second Circuit to Vacate Forced-Labor Convictions.

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Our friend Alexandra Shapiro of Shapiro Arato Bach, LLP, earned an important victory this week in United States v. Dan Zhong, No. 19-4110 (2d Cir. Feb. 23, 2022), persuading the Court to vacate her client’s conviction on three forced-labor charges. (While the Court affirmed the defendant’s convictions on two other counts, those convictions carry far … Read more

Circuit Vacates LIBOR-Rigging Convictions For Insufficient Evidence

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In United States v. Connolly, No. 19-3806 (2d Cir. Jan. 27, 2022), the Circuit (Kearse, joined by Cabranes and Pooler) reversed convictions for substantive wire fraud and for conspiracy to commit wire fraud and bank fraud for insufficient evidence. This is a LIBOR-rigging prosecution. LIBOR (the “London Interbank Offered Rate”) was an interest-rate benchmark, published … Read more

Second Circuit Affirms El Chapo’s Conviction

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In United States v. Beltran Leyva (Guzman Loera), No. 19–2239 (2d Cir. Jan. 25, 2022), the Circuit (Newman, joined by Lynch and Park) affirmed the conviction of Guzman Loera (“El Chapo”), the former leader of the Sinaloa Cartel, for conducting a continuing criminal enterprise, and for drug trafficking, firearms, and money laundering offenses. The Circuit rejected … Read more

A district court may consider the defendant’s future earning potential to conclude that the defendant is “non-indigent” and thus subject to the mandatory $5,000 “special assessment” under 18 U.S.C. § 3014(a)

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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 … Read more

A substance can be an “analogue” of fentanyl for purposes of 21 U.S.C. § 841(b)(1)(B)(vi) — requiring a 5-year minimum sentence where the offense involved “10 grams or more of a mixture or substance containing a detectable amount of any analogue of” fentanyl — even if it does not qualify as a “controlled substance analogue” under 21 U.S.C. § 802(32).

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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 … Read more