Federal Defenders of New York Second Circuit Blog


Friday, June 14th, 2019

Second Circuit defines when it is illegal for an immigrant to possess a firearm

On June 13, 2019, the Second Circuit affirmed the gun possession conviction in US v. Balde.

The story of this case began in 2006, when Mr. Balde’s temporary permission to be in the United States legally was revoked while he was visiting his mother in Guinea during her final illness. He returned by way of JFK airport, where he was informed for the first time that his legal status had been cancelled. He was detained, and the government, alleging that he was inadmissible, initiated removal proceedings. Eventually he was ordered removed, but was then released while he challenged his removal.

To make a long story short, in 2015, over seven years after he received a final order of removal, Mr. Balde was involved in a fight in a Bronx delicatessen and allegedly pulled out a gun. He pleaded guilty to one count of unlawful possession of a firearm by …

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Categories: immigration

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Categories: immigration

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Supreme Court issues a new ruling on the definition of generic burglary

In Quarles v. United States, decided on June 10, 2019, a unanimous Supreme Court held that “remaining-in” burglary qualifies as a crime of violence for ACCA purposes even if the defendant does not form the intent to commit a crime in the building or structure until sometime after the unlawful remaining commences.

The petitioner contended that his Michigan conviction for “home invasion” did not constitute a predicate crime of violence under ACCA (18 USC § 924(e)). ACCA defines a crime of violence to include “burglary.” Under the Supreme Court’s 1990 decision in Taylor v. United States, 495 US 575, the generic statutory term “burglary” means any offense that involves the unlawful or unprivileged entry into, or remaining in, a building or structure with intent to commit a crime therein. The issue in Quarles was whether remaining-in burglary occurs only if a person has the intent to commit a …


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Categories: ACCA, burglary, crime of violence

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The Second Circuit has withdrawn its opinion in Thompson v. Barr

On May 30, 2019, the Second Circuit withdrew the per curiam opinion in Thompson v. Barr, #17-3494, that was issued on May 13. The opinion found that NY assault in the second degree (NYPL § 120.05(1)) is an aggravated felony crime of violence for immigration purposes under the force clause of 18 USC § 16(a).

The panel opinion in Thompson did not discuss whether the fact that a crime can be committed by omission as well as by commission affects whether that offense “has as an element the use, attempted use, or threatened use of physical force.” 18 USC § 16(a). The pro se petitioner did not raise that issue, and it is pending before the Second Circuit in US v. Scott, #18-163 (argued Jan. 10, 2019). This probably accounts for the decision to withdraw the Thompson opinion.…


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Categories: crime of violence, immigration

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Friday, June 7th, 2019

Let’s wait a bit on the non-delegation argument …

The Circuit today affirmed the defendant’s conviction in United States v. Michael O’Brien, which principally rejects, on fact-specific credibility grounds, his 4th and 5th Amendment arguments concerning Miranda and an alleged consent to search. Judge Kearse’s typically thorough opinion lays out the details; no legal ground is broken.

The only issue of note is the Court’s rejection of O’Brien’s additional claim that the substance he was accused of distributing — methylone (a.k.a. Molly) — was improperly placed on the federal list of controlled substances. O’Brien argues that Congress unconstitutionally delegated its legislative power by authorizing the Attorney General (who in turn re- or sub-delegated that authority to the D.E.A.) to determine whether a substance belongs on the federal schedule of controlled substances.

Judge Kearse rejected this argument on procedural and substantive grounds. First, it was untimely because he did not make this argument until after he was convicted. …

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Monday, June 3rd, 2019

Pretrial detention later credited against a term of imprisonment imposed upon conviction tolls period of supervised release under § 3624(e)

Section 3624(e) of Title 18 of the U.S.C. provides that “[a] term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime unless the imprisonment is for a period of less than 30 consecutive days.” The question sometimes arises as to whether pretrial detention similarly tolls the term of supervised release. Although pretrial detention is not, on first look, a “period in which the person is imprisoned in connection with a conviction” for a crime, things look murkier when considered retrospectively. This is because courts often, upon the defendant’s subsequent conviction for the offense for which he was detained pretrial, credit that period of detention against the term of imprisonment ultimately imposed. Indeed, § 3585(b) requires such credit in federal cases.

Today the Supreme Court ruled in Mont v. United States, Sup. Ct. …

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Supreme Court to decide whether plain-error review applies when defendant does not object to sentence as substantively unreasonable at sentencing

Today the Supreme Court granted cert. in Holguin-Hernandez v. United States, S. Ct. No. 18-7739, to resolve the earth-shattering question of whether plain-error review applies to an appellate claim of substantive unreasonableness (i.e., “The sentence is too damn long!”) when defense counsel did not object to the sentence’s unreasonableness at sentencing. The case comes out of the 5th Circuit, the only Circuit to apply plain-error review in this situation. Eight Circuits have held that a post-sentence objection is not required to invoke regular ol’ “substantive reasonableness” review (i.e., abuse of discretion review) on appeal. The Second Circuit has dodged this question, concluding every time that it need not resolve the issue because the challenged sentence is proper even under ordinary reasonableness review. See, e.g., United States v. Nesbitt, 757 F. App’x 13, 14 (2d Cir. Nov. 26, 2018).

 

As we breathlessly await The Nine’s …


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Categories: plain error, Rule 52, substantive reasonableness

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Thursday, May 23rd, 2019

The New Go-To Ruling on Insufficient Evidence

Oh, insufficient evidence– so hard to show in district court after a jury convicts, harder still on appeal with all the “deference” shown to the government.  Yet both were done in United States v. Pauling, where the government sought an enhanced charge and punishment based on five words spoken by neither the defendant nor his co-conspirator.

John Pauling was alleged to have agreed with a supplier named “Low” to sell 100 grams of heroin.  There was proof as to 89 grams, but the government needed 11 more.  So it offered the jury a wiretapped call between Pauling and some guy named “Steve” in which Steve said he wanted “same thing as last time” and referenced the “14th floor.”  The government argued that meant Pauling would get 14 more grams of heroin from Low and sell them to Steve, which would put the total of the Pauling-Low conspiracy over 100 …

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Tuesday, May 21st, 2019

Favorable Finding on First Step Act Feature

 

The First Step Act of 2018, Pub. L. 115-391, allows judges to now “impose a reduced sentence” on people sentenced before August 3, 2010, for certain offenses involving 5 grams or more of crack cocaine.  There’s been a lot of litigation on the Act — yielding over 200 written decisions nationally so far — with a number of bad rulings from courts relying on pro se pleadings or meritless arguments from the government.  Judge Allyne Ross, of the Eastern District of New York, recently addressed both and issued a good ruling for people serving (or not) long crack sentences.

In United States v. Miles, the defendant had been sentenced in 2009 for a 50-gram crack offense that then carried a mandatory minimum of 10 years, which Judge Ross imposed.  After passage of the First Step Act, Miles moved pro se for a reduced sentence given that, per the …

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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, …

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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 …


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Categories: 3553(c), child pornography

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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. …


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Categories: ACCA, crime of violence, Johnson

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