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The Circuit did not issue today either a decision or a summary order relevant to criminal practice.

Nor did the Supreme Court.

Check back again tomorrow!…

Defendant Cannot Benefit on Direct Appeal from Guideline Amendment that Became Effective after His Sentencing if Amendment Is Substantive rather than Clarifying (unless the Commission Determines that the Amendment Should Have Retroactive Effect under § 1B1.10)

In United States v. Miguel Jesurum, No. 14-4464-cr (2d Cir. April 14, 2016), the Court (op. by Pooler, joined by Kearse and Sack) rejects appellant’s argument that (1) the sentencing court erred in finding that the offense “involved more than 250 victims,” which led to a 6-level enhancement under the 2014 version of U.S.S.G. § 2B1.1(b)(2)(C); and (2) he should receive the benefit of a 2015 amendment to the same Guideline, which became effective after his sentencing and which now calls for the same enhancement only where the offense “resulted in substantial financial hardship to five or more victims.”

The first argument fails under the plain language of Commentary to the Guideline. Application …

Lawyers in both districts should be aware of a change in ICE detainer policy.  The old so-called “detainer” form (1-247) is being retired and replaced with three different forms.  The change in policy is summarized here on the ICE website.

One of the new forms, the I-247N, is a request for voluntary notification of the impending release of a “suspected priority alien”, but it does not request or authorize the continued detention of  individuals beyond the point they otherwise would be released.  The form says on its face that it does not request or authorize detention.  It also says on its face that it should not impact decisions about bail, release, or other matters.  Despite these changes, prosecutors and agents may refer to the I-247N as a “detainer” and may argue at a bail hearing that it authorizes your client’s detention.

In light of the change in ICE policy …

The Second Circuit today issued a summary order affirming the denial of a reduction in sentence under 18 U.S.C. 3582(c)(2) and Amendment 782 to the Sentencing Guidelines.  In United States v. Johnson, 15-2051-cr, the Court held that because Mr. Johnson’s guideline range remained 360-life even after Amendment 782, the District Court correctly concluded he was ineligible for a Section 3582(c)(2) reduction.  Mr. Johnson’s other arguments related to possible procedural errors in the calculation of his base offense level at his original sentencing were not proper on a motion for a sentence reduction.…

In a summary order, the Court declined to reach as plain error whether Aggravated Identity Theft, under 18 U.S.C. § 1028(c)(5), requires the government to prove that the individuals did not consent to the unlawful use of their identities. The majority of circuits to consider the issue have rejected the argument. It is an open question in the Second Circuit.

-Philip Weinstein

 …

No opinions or relevant summary orders from the Second Circuit today.

But, big news from SDNY on solitary confinement: Yesterday, Judge Scheindlin approved a settlement in Peoples v. Annucci that will overhaul solitary confinement in New York state prisons. The settlement is about what is called the “SHU,” which is pronounced like “shoe,” and is an abbreviation for “Special Housing Units.” The agreement should, among other things, end this type of solitary confinement for more than 1,100 people, limit the duration of time people have to stay in solitary, and eliminate the use of solitary as punishment for minor violations. Judge Scheindlin wrote that the settlement is the “best example of the power of impact litigation to redress conditions that affect the most vulnerable members of our society.”

It should, however, be noted that while this is a big change, it does not do everything. Some class members objected that …

The Office of the Inspector General released this review of BOP medical staffing challenges.  According to the March 2016 report, BOP staffing shortages limit inmate access to medical care and impact the safety and security of BOP facilities.  The report may be useful at sentencing to demonstrate that the BOP will not provide adequate care for a defendant’s medical condition.  Thanks to the folks at the National Sentencing Resource Counsel Project for forwarding the report.…

United States Jonathan Bulluck, No. 13-255-cr (Summary order of March 24, 2016 (Leval, Calabresi, Lynch):

The Court did not a issue a published opinion today. Its one summary order affirmed the denial of an ineffectiveness claim for lack of prejudice, on the ground that the search of a bag (which contained drugs)in a car stop would have been upheld as a valid “automobile frisk.”

This was the second appeal to the same panel, after a prior summary order concluded that counsel’s performance was deficient in failing to argue that the defendant, a cab passenger, had a reasonable expectation of privacy in the plastic bags in the back of the cab. United States v. Bullock, 556 Fed. Appx. 18 (2d Cir. 2014)(Bullock I). The suppression motion had originally been denied on the ground that the passenger had no expectation of privacy in the back of the cab in general, …

Two summary orders today.

First, United States v. Tanaka: To understand this one, a short backstory is needed: In 2010, Mr. Tanaka and Mr. Vilar were sentenced to 60 months and 108 months of prison time, respectively. Both were fined $25,000. Fast forward to 2014, when both men were resentenced after a successful appeal. But, things weren’t better this time around: Mr. Tanaka got 72 months and Mr. Vilar, 120 months. The fine was increased by 400% to $ 10 million. What changed in between? Mr. Tanaka and Mr. Vilar argued nothing…except that they were successful on appeal and had defended themselves against a government civil suit. They argued their increased sentences were vindictive.

However, the Second Circuit disagreed. The court found that their increased sentences were not based on the exercise of their legal rights, but on their “anti-social conduct following their initial sentence.” The court affirmed the …