Federal Defenders of New York Second Circuit Blog

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

Second Circuit Rules that Conviction Stands for Defendant Who Died While His Appeal Was Pending

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In the Anglo-American legal tradition, if the accused dies before a conviction becomes final, the conviction is vacated and the indictment is dismissed. This is called “abatement” of the conviction, and hopefully most of you have not encountered it. The idea is that the defendant will now face the Lord’s justice, not the King’s, and … Read more

Second Circuit Holds that Only One JVTA Assessment is Permitted even where there are Multiple Counts of Conviction

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The defendant in US v. Haverkamp, 18-3735, pleaded guilty to one count of distribution and receipt of child pornography and one count of possession of child pornography. He was sentenced to 121 months in prison. In addition, the district court imposed the $100 mandatory special assessment under 18 USC § 3013 on each count. The … Read more

Supreme Court Reverses Ninth Circuit for Bypassing the Adversary System

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A Supreme Court term is not complete without a few slap downs of the Ninth Circuit such as this one. The defendant in United States v. Sineneng-Smith operated an immigration consulting business in California.  Between 2001 and 2008, she charged unwitting clients for help in applying to a path-to-citizenship program even though she knew the program … Read more

Unanimous Supreme Court Tosses Bridgegate Conviction

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Kelly v. United States concerns New Jersey’s well-known Bridgegate scandal, where officials with ties to Gov. Chris Christie decided to punish the residents of Ft. Lee because their mayor would not endorse Christie for reelection in 2013.  So, beginning on the first day of school, and under the guise of a traffic study, the defendants … Read more

Pop off, G-Unit

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In a murder-for-hire trial, is it constitutional for a defense attorney to concede—over his client’s objection—that the client hired someone to shoot at the victim (an element of the offense), but argue that the client did not intend for the victim to die? This may seem like a strange strategic choice, but it starts to … Read more