In United States v. Holloway, No. 19-1035 (available here), the Circuit (Nardini, joined by Parker and Livingston), held that a motion for a sentence reduction pursuant to Section 404 of the First Step Act of 2018 is governed by 18 U.S.C. § 3582(c)(1)(B), not § 3582(c)(2). Consequently, the limitations in U.S.S.G. § 1B1.10 do not apply, … Read more
In United States v. Cotto (available here), the Circuit (Leval, joined by Livingston and Bianco) held that the offense of witness retaliation, 18 U.S.C. § 1513(b)(1), does not require proof that the defendant knew the federal nature of the proceeding in which the witness testified. Section 1513(b)(1) applies to one who “knowingly engages in any … Read more
The Second Circuit held this week that an offense is not a “crime of violence [if] it can be committed by complete inaction and therefore without the use of force.” United States v. Scott, ___ F.3d ___, 2020 WL 1522825, at *1 (2d Cir. Mar. 31, 2020). Mr. Scott had originally been subjected to the Armed … Read more
As the defense community continues to focus on clients at elevated risk during the COVID-19 pandemic, a recent ruling from the Fourth Circuit offers new support for vacating the convictions of clients who pleaded guilty to gun possession in violation of 18 U.S.C. § 922(g). An element of that offense is that, at the time … Read more
1. Sufficiency of evidence of sex trafficking involving underage victim The defendant was convicted, after trial, of several offenses, including sex trafficking of a minor who was less than 14 years old, in violation of 18 U.S.C. § 1591(a) and (b)(1). She moved unsuccessfully for a judgment of acquittal (Fed.R.Crim.P. 29), arguing the evidence didn’t … Read more
For one brief, beautiful moment, it seemed like nothing could ever be a crime of violence. But the pendulum is swinging back and now everything is becoming a crime of violence once again. In United States v. Nikolla, 17-2206-cr (2d Cir. Feb. 19, 2020), the Second Circuit held that threatening violence in furtherance of an … Read more
The First Step Act expanded so-called compassionate release, which permits a court to reduce a previously-imposed sentence if it finds that “extraordinary and compelling reasons warrant such a reduction.” 18 U.S.C. § 3582(c)(1)(A). The Act also for the first time enabled defendants to make an application directly to the court for such relief. We are … Read more
In United States v. Tabb, __ F.3d __, 2020 WL 573379 (2d Cir. Feb. 6, 2020), the Court of Appeals held that New York’s attempted assault in the second degree with a deadly weapon or dangerous instrument qualifies as a crime of violence under the force clause. The Court had previously held, in Singh v. … Read more
In United States v. DiMartino, __ F.3d __, 2020 WL 550475 (Feb. 4, 2020) (Jacobs, Sack, Hall), the Circuit affirmed the denial of a post-trial motion for a competency hearing based on the defendant’s persistent adherence to the “Sovereign Citizen” theory that the IRS and Justice Department are private corporations, the tax laws are invalid, … Read more
In United States v. Smith, __ F.3d __ , 2020 WL 521612 (Feb. 3, 2020) (Wesley, Chin, Sullivan), the Court of Appeals held that no Statement of Reasons (“SOR”) need be filed for a sentence imposed in a VOSR, even if it is above the Guidelines range, because the Sentencing Commission has not provided an … Read more