Federal Defenders of New York Second Circuit Blog

Circuit Holds That New York Offense of Possession of a Sexual Performance By a Child (N.Y. Penal Law §263.16) Categorically Matches 18 U.S.C §2252(a)(4)(B) and Is an Aggravated Felony Under the INA.

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In Quito v. Barr, __ F.3d __ 2020 WL 218590 (2d Cir. Jan. 15, 2020) (Wesley, Livingston, Bianco),  the Second Circuit held that attempted possession of a sexual performance by a child under N.Y. Penal Law §263.16 is an aggravated felony under the INA because it categorically fits the definition of the federal offense of … Read more

EDNY: Attempted Hobbs Act Robbery Is Not A § 924(c) Crime of Violence.

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In United States v. Tucker, 2020 WL 93951 (E.D.N.Y. Jan. 8, 2020), the district court (Johnson, J.), held that attempted Hobbs Act robbery is not a crime of violence under 18 U.S.C. § 924(c), and granted defendant’s pretrial motion to dismiss a § 924(c) count predicated on that offense. Tucker reasons as follows: An attempt … Read more

Circuit Vacates Sentence Based on District Court’s Misunderstanding of Authority to Impose Anticipatory Concurrent Sentence; Declines to Enforce Appeal Waiver Where Government Consents to Partial Remand.

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In United States v. Anderson, ___ F.3d ___, No. 18-1839 (2d Cir. Jan. 9, 2020) (Jacobs, Sack, Hall), the Circuit vacated and remanded a 120-month sentence based on two errors: (1) the district court misunderstood its authority to order that the federal sentence run concurrently with a yet-to-be-imposed state parole violation sentence; and (2) the … Read more

Circuit Panel Affirms Fraud Convictions, Over Dissent

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In an opinion expanding the scope of federal criminal liability for “insider trading,” a two-Member majority of the Second Circuit affirmed several securities and fraud convictions in United States v. Blaszczak, 18-2811 (2d Cir. Dec. 30, 2019). Judge Kearse dissented from the decision. This multi-defendant case involved a so-called expert services network: defendant Blaszczak was … Read more

A two-judge majority finds a 17-year sentence “shockingly low”

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Mincing no words, Judge Cabranes, writing for a two-judge majority, proclaimed today that a 17-year sentence was so “shockingly low [ ] that, if upheld, [it] would damage the administration of justice in our country.” Judge Hall, however, disagreed, saying that, “I fear the majority would prefer to substitute its sentencing preferences for that of … Read more

A district court’s order granting a criminal defendant bail under the Bail Reform Act (“BRA”), doesn’t preclude immigration authorities from then detaining that person under the Immigration and Naturalization Act (“INA”). United States v. Lett, No. 18-749-cr, __ F. 3d__, 2019 WL 6752763 (Dec. 12, 2019).

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The Second Circuit joins the Third, Sixth, and D.C. Circuits and holds “that immigration authorities may lawfully detain a criminal defendant ordered to be released under the BRA  pursuant to their authority under the INA to detain aliens seeking admission into the United States who are not ‘clearly and beyond a doubt entitled to be … Read more

The Second Circuit issues an amended opinion in United States v. Pugh, No. 17-1889-cr, __F.3d__, 2019 WL 6708812 (Dec. 10, 2019) (“Pugh II”), a material support to terrorism case. As in the initial opinion — that was discussed in this blog on Sept. 3, 2019 — the Circuit affirms the convictions, but vacates consecutive prison sentences (totaling 420 months) as procedurally unreasonable because of the inadequate statement of reasons for the sentences.

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Yesterday, the Circuit issued an amended opinion in United States v. Pugh. The initial decision issued on August 29, 2019 (United States v. Pugh, 937 F.3d 108) and was discussed in this blog. See infra, posting of Sept. 3, 2019. The Amended Opinion reaches the same results as the initial opinion. The Circuit  (1) rules … Read more

Second Circuit restates its holding that Connecticut’s simple robbery statute, Conn. Gen. Stat. § 53a-133, qualifies as a violent felony under ACCA’s force clause. Estremera v. United States, No. 17-831-pr, __ F. 3d__, 2019 WL 6690775 (Dec. 9, 2019).

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In Shabazz v. United States, 912 F.3d 73 (2d Cir. 2019), the Circuit held that Connecticut’s simple robbery statute, Connecticut General Statute § 53a-133, qualifies as a violent felony under the force clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1) (“ACCA”). Id. at 78. Here, the Circuit holds that Shabazz “resolves” Petitioner … Read more

Factual basis for § 924(c) plea insufficient where proffer showed only that defendant “possessed the gun while simultaneously engaging in [] drug trafficking” and did not establish “specific nexus” between gun and drug-trafficking offense necessary for “in furtherance” element

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In United States v. Luis Rosario, a summary order, the Circuit vacated a guilty plea to a § 924(c) count, charging Mr. Rosario with possessing a firearm in furtherance of a drug-distribution conspiracy, on the ground that the factual basis for his plea was insufficient. The essential facts are that Mr. Rosario participated in a … Read more