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. … Read more
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 — … Read more
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 … Read more
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 … Read more
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 … Read more
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 … Read more
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 … Read more
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 … Read more
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 … Read more
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 … Read more