Federal Defenders of New York Second Circuit Blog

SCOTUS will review the ACCA’s “committed on occasions different from one another” requirement – so object, object, object

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Earlier this week the Supreme Court granted cert. in Wooden v. United States, SCOTUS No. 20-5279, which concerns the interpretation of the ACCA’s requirement that each of the three required prior convictions arise from offenses “committed on occasions different from one another . . . .” 18 U.S.C. § 924(e)(1). The Court will likely resolve … Read more

Circuit affirms convictions of Dean and Adam Skelos, concluding than a McDonnell error in the court’s charge to the jury was harmless beyond a reasonable doubt.

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In United States v. Dean Skelos and Adam Skelos, 2d Cir. Nos. 18-3421 & 18-3442 (Feb. 23, 2021), a panel of the Court (Walker, Sack, and Carney) affirms the Skeloses’ convictions, following a 2018 retrial, for various public-corruption and bribery related offenses (Dean Skelos was the Majority Leader of the New York State Senate and … Read more

District court must make clear, specific finding that defendant committed perjury before imposing the 2-level obstruction enhancement based on trial testimony.

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In United States v. Ivan Rosario, 2d Cir. No. 18-1994 (L) (Feb. 23, 2021) (per curiam), the Court (Sack, Chin, and Lohier) reaffirmed the longstanding rule that a district court may impose a 2-level obstruction enhancement under U.S.S.G. § 3C1.1, based on the defendant’s allegedly false trial testimony, only if it “make[s] findings to support … Read more

Rehaif Heads Back to the Supreme Court

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In a prosecution under 18 U.S.C. § 922(g), “the Government must prove [] that the defendant . . . knew he belonged to the relevant category of persons barred from possessing a firearm.”  Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019).  Usually, this means proving the defendant knew he’d previously been convicted of … Read more

Second Circuit rejects application of the categorical approach for determining an “offense against property” under the MVRA.

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In United States v. Razzouk, No. 18-1395 (2d Cir. Jan. 4, 2021), the Second Circuit, in an opinion by Judge Carney, joined by Judge Walker and District Judge Koeltl, held that in determining whether a conviction is for an “offense against property,” such that restitution is required under the Mandatory Victims Restitution Act (“MVRA”), 18 … Read more

Second Circuit Rejects Rule 11 Challenge Based on District Court’s Confusing Explanation of the Mandatory Minimum on the Ground that the Circumstances Made it Unlikely that a More Precise Explanation Would Have Changed Defendant’s Decision to Plead Guilty.

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In Pedro Garcia-Hernandez, No. 19-2504 (2d Cir. Dec. 18, 2020)(summary order), the Second Circuit rejected a Rule 11 claim that the guilty plea was not knowingly and voluntarily entered because the district court’s explanation of the sentence the defendant faced was confusing. The district explained at the plea colloquy that the defendant was subject to … Read more

Second Circuit Affirms Guideline Sentence For Illegal Re-entry Based the Guideline Enhancement for A Felony Conviction After Reentry.

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In United States v. Daniel Antonio Salas-Miranda, No. 20-734 (2d Cir. Dec. 18, 2020)(summary order), the Court of Appeals rejected an argument that the 24-month guideline sentence, imposed for illegal reentry in violation of 8 U.S.C. § 1326(a), was substantively unreasonable. The sentence was imposed to run consecutively to a 10-year state sentence imposed for … Read more

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).

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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] … Read more