In “a prosecution under 18 U.S.C. § 922(g) [], the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.” Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019). The most common § 922(g) offense is … Read more
Monday’s post, titled Supreme Court Keeps the Faith, discussed the Court’s distaste for “faithless electors.” In two 7-2 rulings today, the Court took its distaste for the faithless to a new level, ruling labor and health laws largely do not apply to religious organizations. In Our Lady of Guadalupe School v. Morrissey-Berru, two teachers sued the Catholic … Read more
Writing for a unanimous Supreme Court in today’s Chiafalo v. Washington, Justice Kagan upheld a state’s power to not just replace — but also to punish — “faithless electors.” Such electors refuse to cast their Electoral College ballots for the presidential candidate the voters of their state selected. The Electoral College is, of course, an … Read more
I. Remedy for a violation of Fed.R.Crim.P. 5(c)(2) Fed.R.Crim.P. 5(c)(2) governs the place for the “initial appearance” of someone “arrested in a district other than where the offense was allegedly committed” and the circumstances permitting the person’s transfer to a district outside the place of arrest. See Fed.R.Crim.P. 5(c)(2). In United States v. Peeples, No. … Read more
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
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
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
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
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
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