Archive | vagueness

Tuesday, September 6th, 2022

A prior conviction under N.Y. Penal Law § 130.50(3) (1965) categorically “relates to” the sexual abuse of a minor, justifying the sentencing enhancements (for child pornography offenses) of 18 U.S.C. § 2252A(b)(1) and (b)(2) — which aren’t unconstitutionally vague. United States v. Ragonese, No. 20-3371-cr, __F.4th__ , 2022 WL 3903437 (2d Cir. Aug. 31, 2022) (Sack, Lynch, and Bianco, Circuit Judges).

  1.  The sentencing enhancements of 18 U.S.C.§ 2252A(b)(1) and (b)(2)

This case concerns the recidivist sentencing enhancements of the child pornography statute, 18 U.S.C. § 2252A. For offenses involving “possession” of child pornography, the penalty is 0 to 10 years’ imprisonment. For “receipt,” there’s a 5-year mandatory minimum prison sentence. But, if the defendant has a prior state conviction under a law “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward,” the minimum penalties are significantly enhanced: for possession, the minimum prison sentence increases from 0 years to 10 years; for receipt, the minimum increases from a 5-year prison term to 15 years. See18 U.S.C. § 2252A(b)(1) (receipt),  (b) (2) (possession). (The maxima also increase:  from 10 years to 20 years for possession, and from 20 years to 40 years for receipt).

In this case, Appellant pleaded guilty to one count of possessing …

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Categories: child pornography, plain error, vagueness

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Wednesday, December 16th, 2020

Pity the poor taxpayer: Appellant goes to a federal building to get tax forms and has an argument with “aggressive” “court security officers (‘CSOs’),” resulting in a misdemeanor conviction that is affirmed in United States v. Wasylyshyn, 979 F.3d 165 (2d Cir. Nov. 3, 2020) (Chief Judge Livingston; Circuit Judge Carney; District Judge Richard M. Berman).

The Appellant in United States v. Wasylyshyn, 979 F.3d 165 (2d Cir. 2020) was convicted of creating a loud noise and nuisance at the Binghamton federal courthouse, in violation of  41 C.F.R. § 102-74.390(a), after getting into an argument with two court security officers (“CSOs”). Id.  at 168. Although the Circuit was “troubled by [the] aggressive treatment” that Appellant received “at the hands of the CSOs[,]” it nevertheless affirms the conviction. 979 F.3d at 177.


a. The trip to the federal courthouse

“Near noon on February 14,  2017, Dr. Marina Wasylyshyn” — a “surgical oncologist” specializing in the treatment of breast cancer and melanoma — went to the U.S. Courthouse in Binghamton, New York, “to collect tax forms” from a “self-service rack” in a hallway off the building’s lobby. This is what “she had done in previous years.” 979 F.3d at 169; see 2018 WL 4191137 at *8 …

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Categories: mens rea, vagueness

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Categories: mens rea, vagueness

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Second Circuit affirms conviction for conspiracy to distribute synthetic cannabinoids, under the Analogue Act, 21 U.S.C. § 813(a). United States v Requena, 980 F.3d 30 (2d Cir. Nov. 4, 2020) (Livingston, Chief Judge; Kearse and Walker, Circuit Judges).

Defendants Brian Racine and Andrew Raymond ran a business producing and selling synthetic marijuana between 2013 and 2015. At the time, “synthetic” cannabinoids weren’t listed on the federal controlled substances schedules. Instead, the government charged that these substances were “controlled substance analogues” under the Controlled Substance Analogue Enforcement Act of 1986 (“Analogue Act”), 21 U.S.C. § 813. See 980 F.3d at 35-36.

“The Analogue Act identifies a controlled substance analogue as a substance with chemical and pharmacological properties substantially similar to those of a substance listed on schedule I or II, 21 U.S.C. § 802(32), and directs, in part, that these substances—if intended for human consumption—be treated[ ] for the purposes of any Federal law as a controlled substance in schedule I[.]” Requena, 980 F.3d at 35 (citing id. § 813(a)). “In turn, 21 U.S.C. § 841(a)(1) and (b) (1)(C) prohibit the distribution of schedule I controlled substances and …

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Categories: mens rea, sufficiency, vagueness

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Tuesday, March 7th, 2017

The Supreme Court Holds that the Advisory Guideline Are not Subject to Vagueness Challenges

In Beckles v. United States, 580 U.S. ___, 2017 WL 855781 (March 6, 2017) the Supreme Court held that Johnson v. United States, 576 U.S. 2551, 135 S.Ct. ___ (2015), does not apply to the Guidelines’ residual clause because “the advisory Guidelines are not subject to vagueness challenges under the Due Process clause.” Slip op. at 1. In an opinion by Justice Thomas, the Court’s reasoning was based on the advisory nature of the Guidelines since United States v. Booker, 543 U.S. 220 (2005). Slip op. at 7. Because the now advisory guidelines “merely guide the district court’s discretion,” they do not implicate the vagueness doctrine’s concerns with notice and arbitrary enforcement. Slip op. at 7-9. Justice Thomas noted that the decision did “not render the advisory Guidelines immune from constitutional scrutiny,” only void-for-vagueness scrutiny; they are still subject to ex post facto rules and Eighth Amendment …

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Categories: career offender, guideline, Johnson, vagueness

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Wednesday, May 4th, 2016

No need to dismiss juror who learned the defendant had been shackled but did not see him shackled; Circuit declines to decide whether USSG 4B1.3 is susceptible to a vagueness challenge; affirms prosecutor’s comments on summation

In United States v. Nastri, 15-489, the Circuit held that the District Court did not err either by declining to dismiss a juror or by applying USSG 4B1.3’s criminal livelihood enhancement, and that the prosecutor’s remarks in summation were not improper.

The juror in question learned from a third party that another juror had been dismissed after seeing the defendant in shackles.  The District Court questioned the juror and the juror told the Court that the knowledge she obtained from the third person would not affect her ability to be impartial.  On these facts, absent a specific showing of harm, the defendant could not show that his right to a fair trial was prejudiced.

On summation, the prosecutor called certain defense arguments “red herrings” and “distractions.”  The defense did not object at the time, so the Circuit reviewed these comments for plain error and, after comparing the comments to …

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Categories: juror discharge, summation, vagueness

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Thursday, August 23rd, 2012

Up In Smoke

United States v. Morrison, No. 10-1926(L) (2d Cir. July 16, 2012) (Calabresi, Chin, Carney, CJJ)

After a jury convicted Morrison of violating the Contraband Cigarette Trafficking Act (here, “the Act”), Morrison persuaded the district court to vacate the conviction and dismiss the charges.  On this, the government’s appeal, the circuit reversed.


Morrison managed a tobacco shop on the Unkechauge Indian Nation’s reservation on Long Island. Mostly, the shop sold untaxed cigarettes,  both in small over-the-counter sales and large wholesale transactions to “Big Customers,” whom Morrison knew were reselling the smokes off reservation.  The government ultimately charged him racketeering offenses predicated on his sale of contraband cigarettes. Morrison filed multiple motions for judgments of acquittal and dismissal, and ultimately persuaded the district court that Section 471 of New York’s Tax Law, which served as the legal predicate for the claimed violation of the Act, was void for vagueness …

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Categories: Uncategorized, vagueness

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Monday, October 22nd, 2007


United States v. Gaqliardi, No. 06-4541-cr (2d Cir. October 22, 2007) (Walker, Calabresi, Sack, CJJ).

This case shuts the door on number of common challenges to convictions under 18 U.S.C. § 2422(b), which makes it a crime to entice a minor to engage in an illegal sexual act, or to attempt to do so. In relatively short order, the court held that: (1) because the statute prohibits attempts, it covers sting operations in which there is no minor victim (here the court joins six other circuits); (2) the statute is not vague, in that its various terms – entice, persuade, coerce, etc., – although not defined, are words in common usage that have ordinary meanings (joining five other circuits); (3) the statute does not criminalize speech that is protected First Amendment and hence is not overbroad.

Gagliardi also made some novel arguments, which the court also rejected. The five-year mandatory …

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Categories: 2422(b), attempt, authentication, entice, overbreadth, sting, Uncategorized, vagueness

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