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Federal Defenders of New York Second Circuit Blog


Tuesday, July 20th, 2021

Second Circuit holds that the district court is not required to consider the sentencing factors of 18 U.S.C. §3553(a) in deciding whether to reduce a sentence under §404 of the First Step Act.

In United States v. Moyhernandez, No. 20-625 (2d Cir. July 15, 2021), a split panel of the Second Circuit held that a district judge need not consider the sentencing factors of section 3553(a), deepening a Circuit split. (Jacobs, Park in the majority, Pooler dissenting) The district court denied defendant’s motion for a reduction in a 360-month sentence for a conspiracy to distribute crack cocaine, after concluding that he was eligible for relief under the First Step Act.

The original sentence was imposed under the mandatory career offender guideline and the sentencing judge made clear at the time that he would have imposed a lower sentence if not for the mandatory guideline. In the defendant’s  motion for a  reduced sentence, he urged the new judge to consider the §3553(a) factors and exercise her discretion to impose a lower sentence. In denying the motion because of the defendant’s lengthy record …

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Categories: 3553(a), First Step Act

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Monday, July 19th, 2021

Second Circuit reverses a suppression order, applying “special needs doctrine” to uphold a parole officer’s search of parolee’s house without reasonable suspicion.

In United States v. Braggs, No. 20-892 (2d Cir. July 13, 2021), the Second Circuit reversed the suppression of guns and drugs found in a search of defendant’s house by his New York state parole officer. The search was based on an anonymous tip that “Mr. Braggs may have guns in his house.” The District Court for the Western District of New York suppressed the evidence, as well inculpatory statements made during subsequent police questioning at his house, on the ground that the search was not based on reasonable suspicion. The district court relied on the State Department of Corrections and Community Supervision directive requiring essentially a reasonable suspicion standard for such a search, and Samson v. California, 547 U.S. 843 (2006), which tied the parameters of a search of a state parolee to the consent required of as a condition of parole.

The Second Circuit ruled that …

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Categories: Fourth Amendment, parole search, special needs

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Categories: Fourth Amendment, parole search, special needs

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Friday, July 16th, 2021

Second Circuit holds there is no right to counsel on an appeal from a compassionate release motion, but an appeal is not frivolous unless it “lacks an arguable basis in law or fact.”

In United States v. Fleming, No.  20-1776 (2d Cir. July 14) an appeal from a denial of compassionate release, the Second Circuit granted a motion to be relieved filed by counsel , but denied the government’s motion for summary affirmance on the ground that the appeal was not frivolous. The motion was an Anders motion filed on the ground that there was no non-frivolous legal argument to be made that the district court abused its discretion under the Brooker standard in denying the motion, where it weighed the factors on the record and concluded that the defendant’s age and health condition (45 years old with asthma) in the context of a Covid-19 outbreak weighed only slightly in favor of release, but was outweighed by the  3553(a) factors, specifically the defendant’s record of violent crime, danger to the community, and protection of the public, and the fact that he had …

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Categories: compassionate release, right to counsel on appeal, summary affirmance

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Monday, July 12th, 2021

The Second Circuit holds that the concurrent sentence doctrine applies when a defendant collaterally challenges the legality of a conviction, under 28 U.S.C. § 2255, and declines to review the § 2255 appeal. Kassir v. United States, No. 19-1477, __F.3d__ (2d Cir. July 9, 2021) (C.J.J. Jacobs, Nardini).

The Circuit applies the “discretionary” concurrent sentence doctrine because the petitioner’s 2255 motion attacked only a single count of conviction, that resulted in a 20-year sentence that is concurrent to “two terms of life in prison” on counts unchallenged. The Circuit said it was exercising its discretion “to decline” to review Mr.  Kassir’s 2255 appeal (challenging the validity of a conviction) because “[e]ven  if  his challenge were successful, our decision would  not shorten the time Kassir must remain in custody because he remains subject to two concurrent life sentences[.]” Op. at 2-3.

The Circuit holds, however, that  if, in the future, the petitioner is able to challenge his two life sentences, he may renew his 2255 challenge to the concurrent 20-year sentence. Op at 25-27.

I. The Circuit avoids deciding (i) whether Dimaya and Davis established a new rule of constitutional law, retroactive to cases on collateral review; or …

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Categories: 2255, concurrent sentence doctrine, Davis, Dimaya, habeas corpus, harmless error, Johnson

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Monday, June 28th, 2021

Second Circuit Vacates 18 U.S.C. § 924(c) Conviction Based On Both Valid And Invalid Predicate Offenses.

In United States v. Heyward, the Circuit (Wesley, joined by Pooler and Carney), the Second Circuit vacated an 18 U.S.C. § 924(c) conviction that was based on both valid and invalid predicate offenses.

Heyward was convicted following a jury trial of three counts: (1) racketeering conspiracy, 18 U.S.C. § 1962(d); (2) drug conspiracy, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846; and (3) possessing/aiding and abetting the possession of a firearm during and in relation to either the Count One racketeering conspiracy or the Count Two drug conspiracy. By special verdict, the jury found that the pattern of racketeering activity supporting the Count One conviction encompassed both murder conspiracy and drug conspiracy. In addition, the jury found that the firearm possessed in Count Three was discharged in furtherance of the Count One racketeering conspiracy, but not the Count Two drug conspiracy. The district court (Englemayer, SDNY) sentenced Heyward to 120 …

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Friday, June 25th, 2021

Police can’t chase a suspected misdemeanant into his home without a warrant—except when they can, which is probably most of the time.

In Lange v. California, No. 21-18, 594 U.S. __ (June 23, 2021), the Supreme Court holds that pursuit of a fleeing misdemeanor suspect does not categorically qualify as an exigent circumstance that permits police to enter a home without a warrant. That is: if a New York police officer tries to stop and ticket you for littering, and you run away, the officer cannot necessarily chase you into your home.

But sometimes, probably even most times, he can. Per the Supreme Court: “A great many misdemeanor pursuits involve exigencies allowing warrantless entry,” so it “turns on the particular facts of the case.”

In Lange, the defendant drove past California highway patrol officers “listening to loud music with his windows down and repeatedly honking his horn.” This prompted officers to follow Lange and then signal for him to pull over. By the time police turned on their signal, Lange …

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Thursday, June 24th, 2021

Challenging § 924(c) convictions based on multiple predicates after Davis.

Since the Supreme Court decided United States v. Davis, 139 S. Ct. 2319 (2019), lower courts have grappled with pre-Davis § 924(c) convictions predicated on both a valid crime of violence and a predicate offense that no longer categorically qualifies (for example, a § 924(c) conviction predicated on both a substantive Hobbs Act robbery and a Hobbs Act conspiracy). In United States v. Eldridge, No. 18-3294-cr (2d Cir. June 22, 2021), the Second Circuit provides guidance on this issue.

In Eldridge, one defendant was convicted at trial of a § 924(c) offense with three possible predicate crimes of violence: (1) kidnapping in aid of racketeering; (2) conspiracy to commit Hobbs Act robbery; and (3) attempted Hobbs Act robbery. The trial was conducted before Davis was decided, so there was no dispute about these predicates. Following Davis, however, both parties agreed that the kidnapping and Hobbs …

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Categories: 924(c), Davis, plain error

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Monday, June 21st, 2021

Questioning about phone number violated Miranda rights.

By summary order dated June 21, 2021, the Second Circuit reaffirmed limitations on law enforcement’s ability to elicit so-called pedigree information after an arrest.

In United States v. Durand, No. 20-1992, the defendant requested a lawyer and did not waive his Miranda rights following arrest. Nonetheless, officers asked him about his phone number, purportedly as part of the administrative booking process. Typically, law enforcement may ask a detainee certain biographical or pedigree information without running afoul of Miranda. However, without a Miranda waiver, police may not ask questions during the booking procedure that are designed to, or that officers have reason to know will, elicit an incriminating response. There are no categorical exemptions from Miranda for certain booking questions and the issue is highly fact-specific.

In Durand, the Circuit held that officers should have known that their post-arrest questioning of the defendant regarding his phone number was …

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Monday, June 14th, 2021

Raising an unpreserved Rehaif claim? You now face an “uphill climb.”

Anyone appealing a criminal conviction is used to uphill battles. Now there is one more. In a near-unanimous decision issued today, the Supreme Court held that the strict plain-error test applies to unpreserved Rehaif claims, explicitly stating that anyone raising this type of claim faces an “uphill climb.” Why? According to Kavanaugh, J., writing for the 8 justice majority: “If a person is a felon, he ordinarily knows he is a felon.”

Just a little refresher: In Rehaif, decided just two years ago, the Supreme Court held that “the Government must prove that a defendant knows of his status as a person barred from possessing a firearm,” for example because of a prior felony conviction. The Rehaif court explained that this element was “crucial” in “separating innocent from wrongful conduct.” Following Rehaif, the Fourth Circuit held in United States v. Gary that pre-Rehaif guilty pleas must be …

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Friday, June 11th, 2021

Circuit Affirms Grant of Habeas Relief Based on Clear Confrontation Clause Violation.

In Garlick v. Lee, No. 20-1796, the Circuit (Wesley, Sullivan, and Menashi) upheld Chief Judge Colleen McMahon’s decision to grant a petition for habeas corpus relief under 28 U.S.C. § 2254.

Garlick was convicted in state court of first-degree manslaughter. At trial, an autopsy report—prepared at the request of law enforcement during an active homicide investigation—was admitted into evidence over Garlick’s objection through a witness who had not participated in the autopsy or the preparation of the autopsy report. On appeal, the First Department affirmed the conviction, concluding that Garlick’s Sixth Amendment right of confrontation was not violated because the autopsy report did not link the commission of the crime to Garlick and therefore was not “testimonial.”

On collateral review, the district court granted Garlick’s § 2254 petition because the First Department’s decision was an “unreasonable application of clearly established federal law.”

The Second Circuit affirmed. Judge Menashi’s opinion …

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Thursday, June 10th, 2021

Supreme Court holds that a crime with a mens rea of recklessness is not a “violent felony” under the Armed Career Criminal Act.

Today’s big legal news is Borden v. United States, 593 U.S. __ (2021), in which the Supreme Court held that a criminal offense with a mens rea of recklessness does not qualify as a “violent felony” under the Armed Career Criminal Act (“ACCA”).

Borden pleaded guilty as a felon-in-possession of a firearm. The prosecution sought an enhanced sentence under the ACCA, which mandates a 15-year minimum sentence for persons found guilty of illegally possessing a firearm who have three or more prior convictions for a “violent felony.” An offense qualifies as a violent felony under the ACCA’s elements clause if it necessarily involves “the use, attempted use, or threatened use of physical force against the person of another,” 18 U.S.C. 924(e)(2)(B)(i). One of Borden’s three predicate convictions was for reckless aggravated assault in violation of Tennessee law. He argued that this offense was not a violent felony under the …

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