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Federal Defenders of New York Second Circuit Blog


Monday, March 18th, 2024

Special conditions of supervised release must be based on an individualized assessment of the defendant and adequately explained.

In two recent decisions, the Second Circuit reiterated the requirements for imposing special conditions of supervised release: a sentencing court must undertake an “individualized assessment” of the defendant and “state on the record the reason for imposing” any special condition. The failure to do so is error.

In United States v. Alex Oliveras, No. 21-2954, — F.4th — (2d Cir. March 15, 2024), the Circuit vacated a special condition allowing the federal probation officer to conduct suspicionless searches of the defendant and his property.

The defendant argued, first, that this special condition violated the Fourth Amendment, and, second, that it was not adequately justified on the record.

The Circuit recognized that individuals on supervised release have a diminished expectation of privacy, and that probation officers have a legitimate need to fulfill their supervisory duties by conducting searches. At the same time, supervisees retain Fourth Amendment rights and conditions infringing …

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Categories: Fourth Amendment, special needs, supervised release

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Supreme Court narrows the “expanded” safety valve.

Under 18 U.S.C. § 3553(f), the so-called “safety valve” provision, district courts have a limited power to impose a sentence below the statutory mandatory minimum in certain drug cases. The defendant’s offense must not involve particular aggravating factors (violence, guns) and the defendant must have a limited criminal history. But how limited?

The 2018 First Step Act expanded this provision to apply to any defendant who “does not have–

(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;
(B) a prior 3-point offense, as determined under the sentencing guidelines; and
(C) a prior 2-point violent offense, as determined under the sentencing guidelines ….”

But is that “and” an “and” or an “or”? In other words, is any one of these criteria (4 points or a 3-point offense or a 2-point violent offense) disqualifying or is a …

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Friday, March 8th, 2024

Mistaken Expectation of a Lower Sentence Does Not Render Guilty Plea Involuntary or Unintelligent.

In United States v. Delvalle, No. 22-1539-cr (2d Cir. Mar. 5, 2024) (per curiam), the Court reiterated its longstanding rule that a guilty plea is not rendered involuntary or unintelligent simply because the defendant expected to receive a lower sentence than he ultimately received.

Delvalle pleaded guilty to a drug conspiracy. The parties estimated that his Guidelines range was 360-480 months, with a statutory minimum term of 60 months. During the plea colloquy, the defendant acknowledged that he had not been “promised” a below-Guidelines sentence, but nevertheless thought it was a “big maybe.” He was disappointed at sentencing when the judge imposed 420 months of imprisonment.

On appeal, he argued that his plea was involuntary because he believed that he would receive a below-Guidelines sentence, and that this belief influenced his decision to plead guilty. The Circuit rejected this argument, “reiterat[ing] the well settled rule that a defendant’s guilty plea …

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Thursday, February 29th, 2024

A post-sentencing examination of previously seized electronic data does not violate the Fourth Amendment. And the subsequent prosecution of the defendant for producing child pornography – based on evidence discovered in that examination – is not barred by the prior plea agreement concerning his conviction for possessing child pornography.

In United States v. Cory Johnson, 2d Cir. No. 22-1086-cr (February 27, 2024), the panel (Livingston, Carney, Bianco) rejects Johnson’s claims and affirms his conviction and 20-year sentence for producing child pornography (CP) in violation of 18 U.S.C. § 2251(a). The opinion, by Chief Judge Livingston, concludes that the instant prosecution for CP production – which follows Johnson’s 2019 conviction for CP possession, after a guilty plea pursuant to a plea agreement– is not barred by the prior agreement. The opinion also rules that the evidence leading to the production charge, discovered during an examination of electronic data seized in the possession case that occurred after Johnson’s sentencing, was not obtained in violation of the Fourth Amendment.

***

Here’s the gist.

After “Johnson was first identified by federal authorities as trading child sexual abuse material (CSAM) within an Internet chat group in 2018, the execution of a search warrant …

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Categories: child pornography, Fourth Amendment

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Friday, February 23rd, 2024

Circuit upholds conviction based on a plea to an indictment mistakenly alleging that the crime occurred on a date four months earlier than the actual date.

In United States v. Morgan, No. 22-2798 (2d Cir. February 23, 2024), the Circuit (Parker, Lynch and Khan) affirmed, in a summary order, the defendant’s conviction for being a felon in possession of ammunition based on an indictment that charged and a guilty plea that admitted to that crime occurring on March 8, 2020, although the offense indisputably occurred on August 31, 2020. Morgan was sentenced for the crime occurring on August 31, 2020, which had been charged in the original complaint, but not in the indictment to which he pled guilty. The Circuit concluded that there was no constructive amendment because “the conduct Morgan was charged with, pled guilty to, and ultimately was sentenced for was one and the same,” and he was on notice of the “essence of the crime.”…

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Wednesday, February 21st, 2024

Where a §2255 petition alleges that counsel failed to file a requested notice of appeal, the district court may not summarily dismiss but must undertake a factual inquiry.

In United States v. Thomas, No. 22-2026 (February 21, 2024), the Circuit (Jacobs, Sack, and Nardini) reversed, in a per curiam opinion, the district court’s summary denial of a §2255 petition alleging that counsel failed to file a notice of appeal as petitioner requested. Thomas swore in his petition that he told his lawyer to file the notice of appeal. The district court held that this allegation was insufficient because Thomas did not include details, such as when and how the request was made, whether there were discussions about it, and whether he was aware of the deadlines for an appeal. The Circuit held that the district court’s summary denial was an abuse of discretion. The Court reaffirmed its precedent in United States v. Campuzano, 442 F.3d 770, 776 (2d Cir. 2006), that a factual inquiry is required “when a defendant claims that his attorney failed to file …

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Friday, December 8th, 2023

New York Narcotics Convictions Still Aren’t Federal Controlled Substance Offenses

In United States v. Chaires, No. 20-4162 (2d Cir. Dec. 7, 2023) (per curiam), the Second Circuit (Carney, Sullivan, and Menashi) remanded for resentencing, on plain error review, where the defendant was sentenced as a career offender based on New York controlled substance predicates. As our dear readers are well-aware, Chaires follows in the footsteps of several important Second Circuit cases holding that state drug crimes are categorically overbroad – and cannot be used to enhance a sentence – because they punish possession of more substances than the federal Controlled Substance Act (CSA). To recap:

  • United States v. Townsend, 897 F.3d 66 (2d Cir. 2018). In this leading case, in addition to holding that the categorical approach applies to the controlled-substance-offense determination, the Court ruled that, because N.Y.P.L. 220.31 punishes possession of human chorionic gonadotropin, but the CSA does not, it cannot serve as a predicate for offense-level-enhancement
…
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Thursday, December 7th, 2023

Circuit Vacates Two Supervised Release Conditions

In United States v. Rodriguez, No. 22-1820-cr (2d. Cir. Dec. 7, 2023) (summary order), the Circuit (Kearse, Calabresi, and Nathan) vacated two drug- and alcohol-related special conditions on plain error review.

At sentencing, the district court imposed a condition requiring Rodriguez to undergo drug treatment evaluation, and “if deemed necessary,” attend outpatient drug treatment. The written judgment, however, imposed an unconditional drug treatment requirement, without the evaluation component. The Court vacated the written condition due to its conflict with the district court’s oral pronouncement at sentencing, which “ordinarily controls”; “a defendant must be present at pronouncement of sentence.” It remanded for entry of judgment consistent with the oral sentence.

The district court also imposed a condition that Rodriguez abstain from alcohol during the aforementioned treatment. While the government agreed that the treatment condition should be vacated unless an evaluation deemed it necessary, it argued that the alcohol provision could …

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Categories: sentencing, supervised release

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Thursday, November 16th, 2023

The Government is seeking certiorari from Range v. Attorney General, United States, 69 F.4th 96 (3d Cir. 2023) (en banc), which held that 18 U.S.C. § 922(g)(1) was unconstitutional as applied to Bryan Range, whose predicate offense was a (1995) conviction for making a false statement to obtain government benefits. See Merrick B. Garland, Attorney General, et al. v. Bryan David Range, No. 23-374. The case is to be conferenced tomorrow, November 17, 2023.

The Solicitor General filed the government’s petition for a writ of certiorari on October 5, 2023. Respondent Bryan Range’s papers were filed on October 18, 2023. The Solicitor General filed its reply on November 1, 2023.

The Supreme Court docket is available at: https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/23-374.html…

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Categories: 922(g), second amendment

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Tuesday, November 14th, 2023

Supreme Court grants certiorari to an alleged drug courier (challenging a federal drug conviction) because the prosecution used an “expert witness” to rebut her defense that she didn’t know about the drugs that were hidden inside her car, which she said belonged to her boyfriend. Petitioner says the “expert” testimony violated Fed.R.Evid. 704(b).

The Supreme Court granted certiorari in Diaz v. United States, No. 23-14 (cert. granted, Nov. 13, 2023).

Discussions and relevant cert. papers are available here: https://www.scotusblog.com/case-files/cases/diaz-v-united-states/

The petition for certiorari frames the “Question Presented” as follows:

Federal Rule of Evidence 704(b) provides: “In a criminual case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.” Fed.R.Evid.704(b).

The question is: In a prosecution for drug trafficking —— where an element of the offense is that the defendant knew she was carrying illegal drugs —— does Rule 704(b) permit a governmental expert witness to testify that most couriers know they are carrying drugs and that drug-trafficking organizations do not entrust large quantities of drugs to unknowing transporters?

 …

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In a summary order, the Second Circuit vacates a district court’s judgment imposing a complete ban on internet use, as a condition of supervised release. The Circuit concludes that it’s “substantively unreasonable” to impose such a ban on someone whose offense involved child pornography, and no evidence suggested he “is likely to seek out children on social media or prey on them in reality.” United States v. Gonyea, Nos. 22-1722-cr, 22-1727-cr (2d Cir. Nov. 13, 2023) (C.J.J.’s Jacobs, Lohier, Lee) (“Summary Order”).

I. Background

In 2017, Appellant was convicted of one count “of receiving child pornography in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and (b)(1)” and sentenced to 72 months’  imprisonment “and a life term of supervised release.” Order at 3.

In 2021, after his release from custody, Probation Officers discovered that he had “created two email accounts but failed to disclose them to the New York State Division of Criminal Justice Services,” as required by the terms of his supervised release. Id. Probation Officers also “seized an unauthorized cell phone . . . containing at least three images of child pornography.” Order at 3-4.

After Gonyea admitted to several supervised release violations, the district court revoked his supervised release and sentenced him to a term of imprisonment “and a new life term of supervised release.” Order at 4. In addition, he “separately  pleaded guilty . . . to one count of …

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Categories: child pornography, Sex offender registration, substantive unreasonableness, supervised release

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