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Friday, July 29th, 2016

Petition to file a Second or Successive 2255 petition is granted by the Circuit –in a Career Offender case based on Johnson and the cert. grant in Beckles — and the district court has discretion to proceed without waiting for the Beckles decision.

Today the Circuit amended its decision in Blow v. United States, No. 16-1530 (Katzmann, chief judge; Wesley and Hall, circuit judges). It added a single line at the end of the opinion to say that the district judge has discretion to proceed on Blow’s  2255 petition and  is not required to hold the petition in abeyance until the Supreme Court decides  Beckles v. United States, No. 15-8544, 2016 WL 1029080 (U.S. June 27, 2016).

The Circuit’s initial opinion was filed about two weeks ago, on July 14, 2016. It granted Blow’s motion to file a Second or Successive 2255 petition. But it  “instructed” the district court to “hold Blow’s §2255 motion in abeyance pending the outcome of Beckles.”

In Beckles,  the Supreme Court granted certiorari to decide whether Johnson v. United States, 135 S.Ct. 2551 (2015)  — which declared that the “residual clause” of the …

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Wednesday, July 13th, 2016

SDNY Judge Pauley Suppresses Evidence Obtained Through Warrantless Use of Stingray Device

In the first opinion of its kind, SDNY Judge William A. Pauley suppressed evidence obtained through the warrantless use of a stingray device.

You can read Judge Pauley’s opinion in United States v. Lambis here.  The New York Times has coverage of the case here.

 …

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Tuesday, June 14th, 2016

How Severe is Too Severe (for Production of Child Porn)?

“Serious nonhomicide crimes may be devastating in their harm[,] but in terms of moral depravity and of the injury to the person and to the public, they cannot be compared to murder in their severity and irreovocability.”  So said the Second Circuit today in United States v. Brown, No. 13-1706-cr (June 14, 2016)  (quoting the Supreme Court decision in Graham v. Flordia, 560 U.S. 48, 69 (2010)), in remanding a 60-year sentence for production of child pornography on procedural grounds that look awfully substantive.  The opinion contains must-use language for advocates at sentencing for a less-than-extreme sentence in any non-homicide case.

The majority opinion (written by J. Pooler with J. Sack signing on) found that the District Court (J. Sharpe, NDNY) may have misunderstood certain facts in imposing a virtual life sentence for photographing and disseminating sexual images of three young girls and possessing thousands of other images of …

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Friday, June 3rd, 2016

Second Circuit Updates – June 3, 2016

No criminal cases were decided by the Circuit today.

But there is an interesting civil case resulting from the plaintiff’s arrest by NYPD detectives,  on charges that were later dismissed. The plaintiff brought a civil suit against the defendants — several named NYPD detectives — under 42 U.S.C.§ 1983 .

The case is Figueroa v. Mazza et al.,  No. 14-4116-cv  (2d Cir. June 3, 2016)  (Circuit Judges: Kearse, Walker, and Cabranes; Judge Kearse dissents from part of the opinion).

In the plaintiff’s civil suit under 42 U.S.C.§ 1983  and state law, he raised the following claims against the detectives: (1) false arrest, (2) excessive force, (3) assault, (4) failure to intervene (because the detectives did not stop an unidentified police officer from beating him as he sat in a  police car), and (5) unlawful entry.

Of interest is Circuit’s discussion of the unlawful entry claim because it involves a …

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Friday, May 13th, 2016

District Court Updates: Driving While Impaired Violation Under NY VTL 1192.1 Does Not Count For Criminal History; Career Offender Guideline Too Harsh

In United States v. Paredes, 15-Cr-436, EDNY Judge Jack B. Weinstein held that a defendant’s conviction for violating New York Vehicle and Traffic Law Section 1192.1, a violation and not a crime, does not result in criminal history points, thereby allowing the defendant to qualify for safety valve relief from a mandatory minimum sentence.  Judge Weinstein concluded that the Sentencing Commission could not have intended to include VTL 1192.1 – New York’s Driving While Ability Impaired statute – because the statue “is a light, noncriminal offense with mens rea squeezed out of it.”  Opinion at 14.  You can read Judge Weinstein’s opinion here.  The New York Law Journal has coverage here.  Mr. Paredes was represented by Len Kamdang of the Federal Defenders of New York.

In United State v Henry, 15-Cr-179, SDNY Judge Paul A. Crotty imposed a sentence of 36 months in a case in …

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