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Federal Defenders of New York Second Circuit Blog


Monday, November 16th, 2020

Maximum supervised release sentence upheld. (Also, don’t forget to make your bed).

In a decision on Thursday, the Second Circuit upheld Betsy Ramos’s two-year sentence for a violation of supervised release, finding that a district court may take recidivism enhancements into account in determining whether the maximum potential term of imprisonment for a crime is more than 20 years, qualifying the crime as a Grade A violation, under 7B1.1 (a)(1)(B).

The facts underlying the Circuit opinion in this case are tragic. In 1998, Ms. Ramos was on supervised release following a drug courier conviction when her boyfriend, who physically abused Ms. Ramos, shot and killed a police officer. Her abusive boyfriend was also killed. For reasons the Circuit opinion does not fully explain, Ms. Ramos was convicted of reckless manslaughter and served more than 20 years in state custody. When Ms. Ramos was granted parole, she was charged with a violation of her supervised release based on the manslaughter conviction, and sentenced …

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Monday, October 26th, 2020

Second Circuit reverses the denial of a motion to suppress a firearm found during a frisk, following a traffic stop, because the officers lacked objective reasons to believe the defendant was armed and dangerous. United States v. Weaver, __F.3d__, No. 18-1697-cr, 2020 WL 5523210 (2d Cir. Sept. 15, 2020).

In United States v. Weaver, No.18-1697, 2020 WL 5523210 (2d Cir. Sept. 15, 2020) , the Second Circuit holds that police officers didn’t have reasonable suspicion that Weaver was armed and dangerous when, after ordering him out of the car, they made him place his hands on the car’s trunk, with his legs spread apart. At best, they had reason to believe Weaver had something illicit. And the search began when Weaver was made to “spread-eagle” on the car trunk — before any officer actually put hands on him.

Judge Pooler wrote the majority opinion; Judge Calabresi concurs in a separate opinion; and Chief Judge Livingston dissents.

I. Facts

At about 5 p.m. in February 2016, when it was still “‘daylight,’” police officers in Syracuse, New York, driving an unmarked car with tinted windows, stopped the car in which Weaver was a passenger, ostensibly for a traffic violation. See…

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Thursday, October 15th, 2020

Fourth Circuit: Attempted Hobbs Act Robbery Is Not A 924(c) Crime Of Violence

In United States v. Taylor, the Fourth Circuit became the first court of appeals to hold that attempted Hobbs Act robbery is not a crime of violence under 18 U.S.C. § 924(c)(3)(A)’s elements clause.

Taylor granted a successive 28 U.S.C. § 2255 motion and vacated the movant’s § 924(c) conviction, which had been predicated on both conspiracy to commit Hobbs Act robbery (not a crime of violence under Fourth Circuit precedent, nor under the Second Circuit’s decision in United States v. Barrett, 937 F.3d 126 (2d Cir. 2019)); and (attempted Hobbs Act robbery.

Taylor reasons that one may attempt Hobbs Act robbery by (i) intending to commit a robbery through a threat of force, and (ii) taking a nonviolent substantial step toward that objective, such as planning the robbery or reconnoitering the target. “Where a defendant takes a nonviolent substantial step toward threatening to use physical force—conduct that …

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Categories: 924(c), Hobbs Act, robbery

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Thursday, October 8th, 2020

Did the Second Circuit Just Read Rule 33 Out of Existence?

Federal Rule of Criminal Procedure 33(a) authorizes a judge to “grant a new trial if the interest of justice so requires.”  This rule has traditionally been understood to “confer[] broad discretion upon a trial court to set aside a jury verdict and order a new trial to avert a perceived miscarriage of justice.”  United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992).

But in a ruling yesterday, a panel of the Second Circuit held “a district court may not grant a Rule 33 motion based on the weight of the evidence alone unless the evidence preponderates heavily against the verdict.”  United States v. Archer, ___ F.3d ___, 2020 WL 5924196, at *4 (2d Cir. Oct. 7, 2020).  And in reviewing the evidence, the “district court must ‘defer to the jury’s resolution of conflicting evidence'” and consider the “trial evidence as a whole.”  Id. at *5.…

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Tuesday, October 6th, 2020

Keep Fighting Those Mandatory Guideline Sentences

Do you have a client who was deemed a career offender pursuant to the residual clause of the mandatory (pre-Booker) Career Offender Guideline?  If so, keep fighting that sentence!  There are at least a couple ways:

1) If the client has a petition pending under 28 U.S.C. § 2255, make sure to argue the sentence is unconstitutional given Johnson v. United States, 576 U.S. 591 (2015).  That argument is currently foreclosed by Nunez v. United States, 954 F.3d 465 (2d Cir. 2020), but there’s a circuit split on the issue that just deepened: the First Circuit has joined the Seventh in holding Johnson effectively invalidated the residual clause of the mandatory Guideline.  See Shea v. United States, ___ F.3d ___, 2020 WL 5755462 (1st Cir. Sept. 28, 2020).  The Supreme Court refused to resolve this split when the Seventh Circuit was the sole outlier, but …

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Categories: 3582(c)(1)(A), Johnson, mandatory guidelines

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Wednesday, September 30th, 2020

Second Circuit holds that district courts may grant compassionate release on expansive grounds and are not limited to the Sentencing Commission’s criteria.

In United States v. Brooker (Zullo), No. 19-3218, 2020 WL 5739712 (2d Cir. Sept. 25, 2020), the Second Circuit, in an opinion by Judge Calabresi (joined by Judges Winter and Chin), held that the First Step Act of 2018 (“FSA”) empowers district courts evaluating motions for compassionate release to consider any “extraordinary and compelling reasons” for granting release or a sentence reduction, not just those criteria set forth by the Sentencing Commission in guidelines that have been unmodified since the FSA’s passage. The Circuit emphasized that the FSA was intended to expand and expedite compassionate release by allowing defendants to make motions directly to the district courts—thus ending the BOP’s role as the “sole arbiter” of such claims—and by permitting those courts greater discretion in granting release. Accordingly, the Circuit held that the constraints imposed by previously-enacted Sentencing Guideline § 1B1.13 do not apply to compassionate release motions brought …

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Categories: Covid-19, First Step Act of 2018, FSA

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Wednesday, September 16th, 2020

Second Circuit: On a motion under the First Step Act, a court isn’t obligated to “recalculate” the Sentencing Guidelines range to account for new Guidelines provisions “or new judicial interpretations of existing Guidelines.” Only Guideline-changes “that flow from the Fair Sentencing Act of 2010” have to be considered. But there’s an acknowledged circuit split. United States v. Moore, __F.3d__, No. 19-1390-cr, 2020 WL 5523205 (2d Cir. Sept. 15, 2020).

In United States v. Moore, No. 19-1390-cr (available here), the Circuit (Nardini, joined by Chin and Sullivan), holds that, on a motion for a sentence reduction under Section 404 of the First Step Act, a court isn’t required to “recalculate” the Guidelines range under the current law, unless (and only to the extent) the Fair Sentencing Act of 2010 changed the Guidelines range.

Here, the district court found Moore eligible for relief under the First Step Act, as indeed he was: he was sentenced in 2009 for  “possessing with intent to distribute more than 5 grams of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B).” Op. at 4.  The district court  nevertheless declined to exercise it’s discretionary authority, under the Act, to reduce the (188-month) sentence. The Circuit affirmed that decision. Op. at 2, 26-27.

Moore’s argument was that the district court miscalculated the Guidelines …

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Thursday, September 10th, 2020

Federal law barring false voter registrations applies to town election because New York’s “unitary registration scheme” allows a falsely registered voter to vote in future federal elections. And the Travel Act’s bar on “bribery” is not limited to acts involving public officials (as payees) and encompasses a New York law barring payments to voters.

In United States v. Smilowitz, 2d Cir. No. 19-361 (Sep. 8, 2020), a panel of the Court (Walker, Parker, and Carney) ruled that the defendant’s conduct of falsely registering voters for a town election, and of offering payment to voters for their votes in that election, fell within the reach of the federal election law, 52 U.S.C. § 10307, and qualified as “bribery” under the Travel Act, 18 U.S.C. § 1952(b). Here are the essential facts.

Smilowitz owned part of a real-estate development in Bloomingburg, New York, population 420. It had a mayor and two trustees.

In 2013 those officials voted against a measure that would have benefitted Smilowitz and several other real-estate developers. Hoping to overturn that decision, Smilowitz and his confederates tried to influence the 2014 election and replace the local officials with candidates amenable to them.

The conspirators did several things giving rise to this prosecution. …

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Friday, August 28th, 2020

Government operation of child pornography website to catch visitors is not outrageous government misconduct and the good faith exception applied to evidence found through a warrant based on the site.

United States v. Caraher, No. 18-511 (2d Cir. August 25, 2020)(Hall, joined by Lynch and Menashi), involved the government’s takeover and operation of the child pornography website “Playpen” for two weeks so that it could track visitors to the site, identify their identities and locations, and search their computers. The FBI obtained a warrant allowing them to search “activating computers” of “any user or administrator who logs into the Playpen website by entering a username and password.” Caraher was such a visitor and agents located him and searched his computer. The district court held that the warrant violated Fed. Rule Crim P. 41(b) and 28 U.S.C. 636(a) but applied the good faith exception to the exclusionary rule.

The Court followed its prior decision in United States v. Eldred, 933 F.3d 110, 111 (2d Cir. 2019), addressing the same warrant and holding that, even if the search and the …

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Wednesday, August 26th, 2020

Reliability challenge to a new testing technique, “computerized voice stress analyzer,” to verify compliance with supervised release, is not ripe for review until supervision begins.

In United States v. Birkedahl, No. 19-2304 (2d Cir. Aug. 25, 2020), the Second Circuit (Sullivan, joined by Park and Nardini)) rejected a challenge to a special condition of supervised release requiring testing by “computerized voice stress analyzer (CVSA)” to verify the defendant’s compliance with conditions in a child pornography possession case. Birkedahl had contested the scientific reliability of this technique and asked for a hearing, which was denied. The Court of Appeals held that the challenge was not “ripe” for review because the technology was rapidly evolving and could advance in the year before it would be used in Birkedahl’s supervision. Since Birkedahl will not be harmed by the test until it is used to monitor his supervised release, the Court held that he may challenge it when his supervision begins and will not be disadvantaged by the Court’s foregoing review until that time.

The court also rejected …

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Wednesday, August 19th, 2020

Circuit Reverses Convictions For Aiding And Abetting VICAR Murder For Insufficient Evidence

In United States v. Anastasio, the Circuit (Carney, joined by Jacobs and Pooler), reversed two convictions for aiding and abetting VICAR murder, 18 U.S.C. § 1959(a)(1), for insufficient evidence. Specifically, the Circuit held that Anastasio undertook no affirmative act that facilitated the murders; he had merely been in the company of the murderers, without offering any assistance, before and after (but not during) the shootings.

Anastasio was a member of the 10th Street Gang in Buffalo. Members of a rival gang shot and injured the brother of a 10th Street member, Delgado. Later that day, 10th Streeters, including Anastasio, beat someone they believed belonged to the rival gang. Still later that day, 10th Streeters, again including Anastasio, met at an apartment to discuss further retaliation. Delgado told those present of his plan to shoot at members of the rival gang and instructed everyone present to find guns. Several did …

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Categories: aiding and abetting, Batson, RICO

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