Tuesday, March 15th, 2016

Second Circuit Overturns Sentence Based on “Reasonable Probability” that Factual Misunderstanding Affected Sentence, Affirms Three Other Sentences

The Court did not release any published criminal decisions today, but did issue four summary orders in criminal cases:

  1. United States v. Peña, No. 14-3837(L) (Katzmann, Lohier, and Droney)

The Peña brothers (Hector and Jose) were convicted after a jury trial of various counts relating to the murders of a drug dealer and others. The Court affirmed their convictions.

First, the Court held that the district court did not abuse its discretion by denying Hector’s request to continue the trial date because of a scheduling conflict, even though that denial forced a change of lawyers and deprived the defendant of his counsel of choice. The Court noted the defendant’s interest in a speedy trial and the original lawyer’s failure to bring the scheduling conflict to the court’s attention in a timely manner. The Court further noted that the right to counsel of choice does not extend to defendants who require appointed counsel.

Second, the Court rejected both defendants’ arguments that the evidence of their guilt was insufficient. The Court ruled that the evidence “amply demonstrated” that the defendants were promised—and actually received—things of pecuniary value in exchange for the murders. The Court also found the evidence sufficient to prove the jurisdictional element of the murder- for-hire statute (18 U.S.C. 1958(a)) because a witness testified that a pay phone was used to contact a defendant about one of the murders.

Third, the Court held that the admission of evidence regarding the condition of the murder victims’ bodies was not plain error. This evidence, the Court ruled, though potentially “shocking,” was relevant to corroborate witness testimony about how the murders were carried out.

Fourth, the Court rejected a “cursory argument” that the murder-for-hire is unconstitutional because it improperly encroaches on the police power of New York State.

Finally, the Court rejected the argument that the district court abused its discretion by admitting evidence of various “other acts” by the defendants in violation of Fed. R. Evid. 404(b). The evidence was properly admitted to explain the “mutual trust” between the defendants and cooperating witnesses, was relevant to the cooperating witnesses’ credibility, and was not overly prejudicial.

  1. United States v. Pinney, No. 15-1242(L) (Katzmann, Lohier, and Droney)

Pinney, while on supervised release, absconded from a residential re-entry center in New York and was eventually arrested in Nevada. He admitted that his departure violated the terms of his supervised release, and he also pled guilty to one count of failing to register as a sex offender when he traveled to Nevada, in violation of the Sex Offender Registration and Notification Act (“SORNA”).

Pinney was sentenced in a single proceeding for both the SORNA charge and the supervised release violation. At sentencing, the court labored under the mistaken belief that Pinney had absconded from a halfway house previously. Though no objection was raised to this error at sentencing, the Court held that it constituted reversible plain error because the district court “emphasized Pinney’s [supposed] recidivism” in explaining both the SORNA sentence and the violation sentence.  The Court concluded that a “reasonable probability” existed that the court’s factual misunderstanding affected its sentencing decision, and that allowing the sentences to stand would “seriously affect the fairness, integrity or public reputation of judicial proceedings.”

In summary, this was a nice win for the Federal Defenders in the Northern District of New York. Too bad it’s not published!

  1. United States v. Illarramendi, No. 15-0526 (Leval, Wesley, and Sannes)

Appellant pled guilty to five felony offenses in connection with his involvement in a fraudulent Ponzi scheme that cause numerous victims to lose hundreds of millions of dollars. He was sentenced to 156 months of imprisonment, which was effectively below the recommended Guidelines range of 188–235 months of imprisonment.

On appeal, the Court held that the sentence was neither procedurally or substantively unreasonable. The Court noted that, though evidence pointed towards a loss amount in excess of $200 million, the district court “cautiously determined” that the loss was far lower. Accordingly, the Court affirmed the reasonableness of the sentence.

  1. United States v. Medina, No. 15-0445 (Pooler, Wesley, and (Janet C.) Hall)

Medina was charged with (1) a drug trafficking crime, (2) using, carrying, and possessing a firearm in furtherance of the drug trafficking crime (18 U.S.C. 924(c)), and (3) murdering a man named Clark by means of the use, carrying, possession, and discharge of a firearm in furtherance of the drug trafficking crime (18 U.S.C. 924(j)). A jury convicted the defendant of the first two counts, but acquitted him of the 924(j) offense.

The defendant argued on appeal that the district court committed reversible error by failing to dismiss the 924(c) charge before trial. He contended that § 924 authorizes only a single § 924 charge for each narcotics predicate.

The Court agreed that the district court “may have erred” when, in denying the defendant’s motion to dismiss, it ruled that the defendant could not mount a statutory “unit of prosecution” challenge to the indictment, separate and apart from a double jeopardy analysis. But the Court held that any such error was harmless because the defendant was convicted of only one § 924 charge and could not show that any impropriety in the indictment caused him any substantial prejudice.

The Court also rejected the defendant’s argument that the district court improperly considered “acquitted conduct” at sentencing. The Court ruled that it was bound by Second Circuit precedent that has repeatedly upheld the legality of acquitted-conduct sentencing.

-Ed Zas

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