Federal Defenders of New York Second Circuit Blog

In a felon-in-possession case (18 U.S.C. § 922(g)), a person charged in a single count with possessing a firearm on two separate dates, during a six-day period, isn’t entitled to an instruction that the jury “must agree unanimously on a particular date or dates on which he possessed a firearm.” Rather, possession of a firearm “is a continuing offense,” so the jury only needs to find “unanimously that the defendant possessed the firearm at any point” during period of the alleged possession.  United States v. Estevez, No. 17-4159-cr, 2020 WL 3022983 (June 5, 2020).

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In Estevez, the sole count of the indictment alleged that Estevez possessed a firearm on two different dates: on February 21, 2016 and February 26, 2016. The charge was based on two separate shooting incidents, on those days. But a puzzling aspect of the Opinion is that it makes no reference to last years’ Supreme … Read more

District Court Erred in Denying 3rd Point for Acceptance of Responsibility, Despite a Government Motion on the Defendant’s Behalf, Based on Its Belief that the Defendant’s Suppression Motion Caused the Government to Do Work that Overlapped with Trial Preparation

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Reading a 45-page opinion about the “third point” in the acceptance-of-responsibility Guideline, U.S.S.G. § 3E1.1(b), makes one wonder whether Booker was but a dream. Why, one might ask, do judges in 2020 care so much about a miniscule adjustment to the offense level when they can simply go outside the advisory range and impose whatever … Read more

New York Fifth-Degree Drug Sale Does Not Qualify as “Felony Drug Offense” for Purpose of § 851 Recidivist Enhancement

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In United States v. Jeremy Thompson, 2d Cir. No. 18-2545, __ F.3d ___ (2d Cir. June 8, 2020), the Court held (in an opinion by Judge Walker) that a New York conviction for fifth-degree criminal sale of a controlled substance, in violation of N.Y. Penal Law § 220.31, does not qualify as a “prior conviction … Read more

Eligibility for First Step Act relief depends on the statutory offense for which a defendant was sentenced, not the “actual conduct.”

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The First Step Act of 2018 authorizes district courts to make a discretionary decision about whether and how to reduce a defendant’s sentence, but only if the defendant was sentenced for a “covered offense.” The Act defines a “covered offense” as “a violation of a Federal criminal statute, the statutory penalties for which were modified … Read more

The “realistic probability” test has no role to play in the “categorical approach” when a state statute on its face is broader than the federal definition.

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Here’s an important decision you may have missed because it arises in the context of an immigration proceeding rather than a criminal case. In Williams v. Barr, No. 18-2535 (2d Cir. May 27, 2020) (Jacobs, Carney, and Bianco), the Circuit clarified that, under the “categorical approach” for determining whether a state statute criminalizes more conduct … Read more

Under 18 U.S.C. § 3582(c)(2), district courts may not reduce a sentence below the bottom of the amended Guidelines range based on a § 5G1.3(b) adjustment at the original sentencing.

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In United States v. Zapatero, No. 18-3829 (2d Cir. June 3, 2020) (Hall, Sullivan, and Bianco), the Circuit held that the plain language of 18 U.S.C. § 3582(c)(2), and its incorporated Guidelines provisions, preclude a district court from reducing a sentence below the amended Guidelines range based on a § 5G1.3(b) adjustment at the original sentencing. … Read more

The Second Circuit vacates and remands for resentencing because of the erroneous application of the Sentencing Guidelines enhancements for possessing a “dangerous weapon” (§ 2B3.1, cmt. n.2) and “physical restraint” (§ 2B3.1(b)(4)(B)) – – which increase the offense level for robbery offenses. United States v. Taylor, No. 18-1710,  __F.3d__, 2020 WL 2745536  (May 27,  2020). 

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In United States v. Taylor, the Circuit interprets two provisions of the Sentencing Guidelines that increase the offense level for robbery. It concludes that the sparse facts “set forth in the Presentence Report (PSR), upon which the district court relied at sentencing, are insufficient to support the application of either enhancement.” 2020 WL 2745536 at … Read more

Circuit affirms convictions arising from usurious and fraudulent lending scheme.

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In United States v. Tucker, No. 18-181(L) (2d Cir. June 2, 2020) (Leval, Pooler, and Parker), the Second Circuit unanimously affirmed Muir’s and Tucker’s convictions arising from their operation of an illegal payday lending scheme. The central issue on appeal concerned the jury instructions regarding “willfulness.” The trial judge instructed the jury with respect to … Read more

Supreme Court Holds that a Motion to Alter or Amend a Judgment Under Civil Rule 59(e) Is Not a Second or Successive Habeas Petition.

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In Bannister v. Davis, No. 18-6943 (June 1, 2020), the Supreme Court today held that a motion to alter or amend a judgment under Fed. R. Civ. P. 59(e) is not a “second or successive” petition for habeas corpus purposes. The vote was 7–2, with only Justices Alito and Thomas dissenting. Justice Kagan’s opinion for … Read more

Second Circuit defines “altered” serial number on a firearm for purposes of the four-level enhancement under U.S.S.G. § 2K2.1(b)(4)(B) to mean that at least one serial number on the firearm is illegible to the naked eye.

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In United States v. St. Hilaire, __F.3d__, 2020 WL 2563112 (2d Cir. May 21, 2020), the Second Circuit, in an opinion by Judge Jacobs (joined by Judges Calabresi and Chin), for the first time addressed the meaning of the four-level sentencing guideline enhancement for possessing a firearm with “an altered or obliterated serial number,” under … Read more