Federal Defenders of New York Second Circuit Blog

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).

by

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 … Read more

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

by

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. §§ … Read more

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

by

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 … Read more

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

by

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 … Read more

Questioning about phone number violated Miranda rights.

by

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 … Read more

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

by

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 … Read more

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

by

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 … Read more

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

by

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 … Read more

Scheme to Bribe Basketball Coaches Fouls Out.

by

In United States v. Dawkins, No. 19-3623(L) (2d Cir. June 4, 2021) (Raggi, Sullivan, and Nardini), the Circuit affirmed the defendants’ convictions arising from a scheme to bribe college basketball coaches, in violation of 18 U.S.C. § 666(a)(2). As relevant, Section 666 makes it a crime to bribe “an agent of an organization … in connection with any … Read more

Government Did Not Act Unconstitutionally or in Bad Faith by Refusing to Make “Substantial Assistance” Motion Under § 3553(e).

by

In United States v. Trimm, No. 20-2264 (2d Cir. June 2, 2021) (per curiam) (Livingston, Jacobs, and Menashi), the Second Circuit held that the district court erred in concluding that the government’s refusal to make a “substantial assistance” motion under 18 U.S.C. § 3553(e) was unconstitutional and motivated by bad faith. Accordingly, the Court vacated the … Read more