Federal Defenders of New York Second Circuit Blog

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

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