Navigation

Federal Defenders of New York Second Circuit Blog


Thursday, May 16th, 2019

Second Circuit: general statute not enough to prove acquired citizenship

Finding valid defenses to illegal reentry charges tends to be challenging. Today, the Second Circuit issued a lengthy summary order in United States v. Lewis that, unfortunately, won’t make it any easier.

Here’s what happened: Mr. Lewis was charged with illegally reentering the United States. The defense planned to argue that Mr. Lewis, who was born in Guyana, was actually a United States citizen because he had acquired citizenship from his father automatically at birth. His father and mother were unmarried, but a Guyanese law “legitimated” all children in Guyana born out of wedlock.

The question was: did this Guyanese law establish “legitimate paternity” for Mr. Lewis? The trial judge said no, prohibited the defense, and instructed the jury that, as a matter of law, Mr. Lewis had not established that he acquired United States citizenship. Unsurprisingly, Mr. Lewis was convicted. He was sentenced to 63 months of imprisonment.

Today, …

Posted by
Categories: illegal reentry

Posted By
Categories: illegal reentry

Continue Reading
Tuesday, May 14th, 2019

Jenkins II: Circuit Vacates and Remands Child Pornography Sentence, Again

You may remember that, back in April 2017, the Second Circuit vacated a 225-month sentence for a person convicted of the possession and transportation of child pornography as “shockingly high.” In Jenkins I, the Circuit wrote an extensive opinion, chock-full of quotable portions for sentencing memos and appeals, about why the child pornography guidelines can produce “unreasonable results.”

On remand, however, the district court resentenced Mr. Jenkins to 200 months of imprisonment – still an exceedingly long sentence for a first conviction.

On Friday, the Circuit reversed again, this time sending the case to a new district judge. Although Jenkins II is a summary order, it still has potentially useful language about why it is error for a district court to rely on studies or statistics about people convicted of child pornography offenses as a reason to believe that a particular person committed a prior “undetected” offense. As the …

Posted by
Categories: 3553(c), child pornography

Posted By
Categories: 3553(c), child pornography

Continue Reading
Wednesday, May 8th, 2019

Second Circuit Upholds ACCA Sentence

In United States v. Evans, the Second Circuit upheld a sentence imposed pursuant to 18 U.S.C. 924(e)(2)(B), the Armed Career Criminal Act (“ACCA”). As the Court described it, the case presented “the latest entry in a series of cases defining offenses that qualify as ‘violent felonies'” for the purposes of ACCA’s sentencing enhancement. The Court held that North Carolina second-degree burglary qualifies as a violent felony under ACCA’s “enumerated clause” and that federal bank robbery in violation of 18 U.S.C. 2113(a) qualifies as a violent felony under ACCA’s “elements clause.” You can read the Evans opinion here. …

Posted by
Categories: ACCA, crime of violence, Johnson

Posted By
Categories: ACCA, crime of violence, Johnson

Continue Reading

Circuit Vacates Special Condition of Supervised Release

The Second Circuit today vacated a special condition of supervised release and remanded for further proceedings. In United States v. Smith, which you can read here, the Circuit relied on its recent decision in United States v. Betts, 886 F.3d 198, 202 (2d Cir. 2018). In Betts, the Court held that “A District Court is required to make an individualized assessment when determining whether to impose a special condition of supervised release, and to state on the record the reason for imposing it.” Where the district court does not give the reason, the special condition can survive appeal “only if the district court’s reasoning is ‘self-evident in the record.'” Opinion at 3 (quoting Betts). In Smith, the district court imposed a special condition that prohibited Smith from consuming alcohol, but made no individualized assessment in determining whether to impose that condition. The district court’s comment …

Posted by
Categories: supervised release, Uncategorized

Posted By
Categories: supervised release, Uncategorized

Continue Reading
Wednesday, April 17th, 2019

Judge Rakoff Limits Government’s Description of Stock Market as “Level Playing Field”

Prior to opening statements in United States v. Pinto-Thomaz, 18 Cr. 579 (JSR), Southern District Judge Jed S. Rakoff precluded the government from giving a jury the standard line that the stock market should be a “level playing field.” According to this report from Law360.com, Judge Rakoff said, “Anyone who thinks the stock market is a level playing field obviously has no contact with reality.” He permitted the government to argue that the defendant “conferred an ‘illegal advantage'” through tips. …

Posted by
Categories: insider trading, Uncategorized

Posted By
Categories: insider trading, Uncategorized

Continue Reading
Thursday, April 11th, 2019

Credit Union Robbery is a Crime of Violence for the Purposes of 18 U.S.C. 924(c)

Today, in United States v. Hendricks, the Second Circuit held that robbery of a credit union, in violation of 18 U.S.C. 2113(a), is a “crime of violence” for the purposes of 18 U.S.C. 924(c). The Circuit said it had “little difficulty in holding that bank robbery committed ‘by intimidation’ categorically constitutes a crime of violence for the purposes of [Section] 924(c)(1)(A).” Opinion at 15.

Stay tuned for a more detailed discussion of Henricks.…

Posted by
Categories: 924(c), crime of violence, Johnson

Posted By
Categories: 924(c), crime of violence, Johnson

Continue Reading

Enhancement under U.S.S.G. 2A6.2(b)(1)(A) for “violation of a court order of protection” does not apply if the defendant was not served as required by law

In United States v. Thompson, the Second Circuit remanded for resentencing. At sentencing, the District Court determined that the two-level enhancement under U.S.S.G. 2A6.2(b)(1)(A) for “violation of a court order of protection” applied because Mr. Thompson had been “on notice of the issuance” of an order of protection. But Mr. Thompson had not been served with the order in compliance with state law. A state court ex parte order of protection may provide the basis for the application of the enhancement where that order was issued: (1) by a court with personal jurisdiction over both the petitioner and the respondent; (2) by a court with jurisdiction over the subject matter; (3) in compliance with federal procedural due process protections; and (4) in compliance with state time limits regarding notice and opportunity to be heard. Opinion at 8. Here, the court that issued the order of protection did not have …

Posted by
Categories: sentencing

Posted By
Categories: sentencing

Continue Reading
Tuesday, March 5th, 2019

New York Penal Law 130.45 Not a “Prior Sex Offense” Under the Categorical Approach

Today the Second Circuit applied the categorical approach and vacated a life sentence. In United States v. Kroll, the Circuit held that under the categorical approach, the defendant’s 1993 conviction under New York Penal Law 130.45 did not constitute a “prior sex offense” as defined by 18 U.S.C. 3559(e)(1), and thus did not trigger a mandatory life sentence, because the state statue sweeps more broadly than its federal equivalent.

For a prior state conviction to count as a “prior sex offense,” it must “‘consist[] of conduct that would be a Federal sex offense’ if there were a basis for Federal jurisdiction.'” Opinion at 10. The Circuit held that a district court must employ the categorical approach when determining whether the state statute consists of conduct that would be a Federal sex offense. Under the categorical approach, courts “ask[] whether the least of conduct made criminal by the state statute …

Posted by
Categories: categorical approach, sex offenses

Posted By
Categories: categorical approach, sex offenses

Continue Reading
Friday, January 25th, 2019

The 924(c)(3)(B) Circuit Split Grows (in a Good Way)

This week, the Fourth Circuit held in United States v. Simms, No. 15-4640 (4th Cir. 2019) (en banc) that § 924(c)(3)’s residual clause is unconstitutionally vague and therefore that conspiracy to commit Hobbs Act robbery is not a crime of violence. The decision deepens the Circuit split on this issue, which the Supreme Court will soon address in Davis.

Notably, the en banc majority in Simms declined to apply the constitutional avoidance canon to adopt a conduct-specific reading of § 924(c)(3)(B). The avoidance canon has “no application,” the Court stated, where “there is an absence of more than one plausible construction” of the statute. Slip op. at 41 (quotation marks omitted). As the Court explained elsewhere, the government’s favored reading of § 924(c)(3)(B) is implausible because its text and structure “unambiguously require courts to analyze the attributes of an ‘offense that is a felony . . . by …

Posted by
Categories: 924(c), categorical approach, conspiracy, crime of violence, Hobbs Act, Johnson

Posted By
Categories: 924(c), categorical approach, conspiracy, crime of violence, Hobbs Act, Johnson

Continue Reading
Wednesday, January 16th, 2019

Loss in Stokeling

Yesterday, in Stokeling v. United States, the Supreme Court held that Florida robbery is a violent felony under the Armed Career Criminal Act (ACCA). In doing so, the Court modified Johnson‘s understanding of the degree of “force” necessary for to satisfy the ACCA’s force clause. The excellent summary below is courtesy of Aamra Ahmad, of the Sentencing Resource Counsel Project, and Paresh Patel, Appellate Chief for the District of Maryland Federal Defenders:

Today, in Stokeling v. United States (17-5554), the Court revisited the meaning of the term “physical force” as it is used in the elements clause of the ACCA statute. In Johnson v. United States, 559 U.S. 133, 140 (2010), the Court defined “physical force” as a quantity of “force capable of causing physical pain or injury.” But in Johnson, the Court also used words such as “severe,” “extreme,” “furious,” or “vehement” to define “physical …

Posted by
Categories: ACCA, categorical approach, robbery

Posted By
Categories: ACCA, categorical approach, robbery

Continue Reading
Friday, January 11th, 2019

Cert. Grant in Davis

The Supreme Court recently granted a certiorari petition in Davis v. United States that presents the following questions:

(1) Whether 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague;

(2) whether Hobbs Act robbery is a “crime of violence” as defined by 18 U.S.C. § 924(c)(3); and

(3) whether a prior Texas conviction for burglary is a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e).

Practitioners should take care to preserve challenges to § 924(c)(3)’s residual clause notwithstanding the Second Circuit’s holding in Barrett, and to preserve arguments that offenses such as Hobbs Act robbery (and conspiracy to commit that offense) are not crimes of violence under  § 924(c)(3). (Note that, as of the date of this post, the mandate has not issued in Barrett.)…

Posted by
Categories: 924(c), ACCA, categorical approach, certiorari, conspiracy, crime of violence, Hobbs Act, Johnson

Posted By
Categories: 924(c), ACCA, categorical approach, certiorari, conspiracy, crime of violence, Hobbs Act, Johnson

Continue Reading