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Federal Defenders of New York Second Circuit Blog


Thursday, June 28th, 2018

Second Circuit Reversal of Vulnerable Victim Sentencing Enhancement

Today, in a summary order, the Second Circuit remanded a case for resentencing based on the district court’s erroneous application of the vulnerable victim enhancement. The decision may be useful to practitioners whose clients who were not necessarily aware of a victim’s vulnerable status during the commission of their charged offenses. The summary order in United States v. Nicholson, No. 17-197 (2d Cir. 2018) (Newman, Cabranes, Carney) (appeal from WDNY), is available here.

The defendant in Nicholson was himself a victim of a “Jamaica lottery scam,” wherein he was advised that he won $15 million in a lottery, which he could collect after paying $860 in local taxes. The scam-runner told Nicholson he could bay off these taxes by collecting money from third parties who were also victims of the scam. As it happened, one of those third parties was an elderly man in California, who …

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Recap of Supreme Court Decisions in Carpenter and Currier

As we mourn Justice Kennedy’s retirement, Sentencing Resource Counsel Sissy Phleger has graciously allowed us to post her summaries of the Supreme Court’s recent decisions in Carpenter v. United States (opinion available here) and Currier v. Virginia (opinion available here):

First, in the eagerly-anticipated Carpenter v. United States, the Court held that the government’s acquisition of Mr. Carpenter’s cellphone location records was a Fourth Amendment search. Roberts wrote for the majority, joined by Kagan, Breyer, Sotomayor, and Ginsburg. All the dissenters filed separate opinions (and variously join in each other’s). While the majority opinion is at pains to confine its impact, this is a great win with potential implications far beyond its specific circumstances.

Mr. Carpenter had challenged the use of warantlessly-obtained historical cell-site location records used to convict him of a string of armed robberies. He argued that the records constituted a search, and thus required …

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Categories: cell phone location information, double jeopardy, Fourth Amendment

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Tuesday, June 26th, 2018

Plain Error Under Rosales-Mireles

Though it disgraced itself today, the Supreme Court issued a hopeful opinion last week in Rosales-Mireles v. United States concerning the scope of plain error review for unobjected-to Guidelines miscalculations at sentencing. One of the most significant parts of this opinion is a footnote where the Court confirms that “proof of a plain Guidelines error” will ordinarily be sufficient for a defendant to meet the burden of showing that the error “seriously affected the fairness, integrity, or public reputation of judicial proceedings.” Slip op. at 11 n.3. The opinion, worth reading in its entirety, is available here.

The defendant in Rosales-Mirales was sentenced (for illegal reentry) based on an incorrect Guidelines range resulting from an incorrect calculation of his criminal history score. He was sentenced at the low end of the incorrectly calculated Guidelines range, but squarely in the middle of the correct Guidelines range. The defendant did not …

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Categories: plain error, sentencing

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Categories: plain error, sentencing

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Friday, June 22nd, 2018

Circuit Upholds Warrantless Search of Car, Remands for Resentencings to Consider Downward Departures and Concurrent Sentences

In United States v. Jones, the Circuit affirmed the district court’s refusal to suppress evidence seized during a warrantless search of a car parked in the common parking lot of a multi-family building.  The Circuit held Jones had no legitimate expectation of privacy in his car because it was parked in a driveway shared by tenants of two multi-family homes, not within the curtilage of his private home, and he did not have exclusive control over the driveway.  Op. at 13-15.

In United States v. Sawyer, the Circuit remanded the case for the second time, this time for resentencing in front of a new district judge.  The Circuit previously had vacated as substantively unreasonable a 360-month sentence for the offenses of producing and receiving child pornography.  In that opinion, the Circuit held that the “30-year sentence would have been appropriate for ‘extreme and heinous criminal behavior’ and the …

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Categories: automobile exception, child pornography, concurrent, curtilage

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Supreme Court: Police Generally Need Warrant for Historical Cell-Site Information

In Carpenter v. United States, the Supreme Court today held that the government’s acquisition of historical cell-site location information constitutes a Fourth Amendment search and the government generally will be required to obtain a warrant to acquire that information.  The so-called third-party doctrine does not permit the government to obtain cell-site location information as “business records” because “[t]here is a world of difference between the limited types of personal information [permissibly obtained under the third-party doctrine] and the exhaustive chronicle of location information casually collected by wireless carriers.”

 

You can read SCOTUSblog’s analysis of the case here.

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Categories: cell phone location information

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SDNY Judge Issues Guidelines Regarding Use of 302 Forms in Criminal Trials

An FYI for counsel who will be cross-examining witnesses in SDNY Judge Katherine B. Forrest’s Courtroom.  Judge Forrest has issued “Guidelines Regarding Appropriate Use of 302 Forms in Criminal Trials.”  You can read the Guidelines here and may need to plan ahead where you need to use a 302 to complete the impeachment of a witness.

In the eight-page document, the Court addresses what it sees as the “most common issues related to the proper use of 302s.”  After discussing how the Federal Rules of Evidence apply to the use of 302s, the Court concludes: “It is clear that statements included in 302s are therefore classic hearsay without — in and of themselves — requisite indicia of reliability.”  Because the Court views mention that the witness’s statements contained in the 302 were written down by an FBI agent as “giving [the statement] an indicia of reliability,” it will preclude counsel …

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Categories: 3500 Material, cross-examination, evidence, impeachment

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Friday, June 15th, 2018

Sua Sponte, Post-Dimaya Order Granting Leave to File a Successive 2255 Motion

On the post-Dimaya front, the Second Circuit gave us some good—but easily overlooked—news last week. See Acosta v. United States, No. 16-1492 (2d Cir. 2018) (Jacobs, Livingston, Droney) (clerk’s order). In a sua sponte order, available here, the Circuit granted leave to file a successive 2255 petition arguing that a conviction under 18 U.S.C. § 924(c)(3)(B) is unconstitutional.

Here’s the analysis:

Petitioner has “made a prima facie showing that his claim satisfies § 2255(h) and warrants fuller exploration by the district court.” Blow v. United States, 829 F.3d 170, 172 (2d Cir. 2016).

Section § 924(c)(3)(B) is essentially identical to 18 U.S.C. § 16(b), which was found unconstitutional by the Supreme Court in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), largely based on the Supreme Court’s analysis in Johnson. The Supreme Court has held Johnson to be retroactively applicable to cases on collateral review.

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Categories: 924(c), categorical approach, due process

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(Non-)Waiver and the Generic Definition of Manslaughter

Last week the Second Circuit issued an opinion holding that, under the residual clause of the pre-2016 Career Offender Guideline (COG), U.S.S.G. § 4B1.2(a)(2), offenses under a subsection of New York’s first-degree manslaughter statute are crimes of violence. In so holding, the Circuit defined the generic definition of manslaughter to include “the unlawful killing of another human being recklessly.” United States v. Castillo, No. 16-4129 (2d Cir. 2018) (Cabranes, Raggi, Vilardo (WDNY)) (appeal from Woods, J., SDNY), slip op. at 24. The Court further held, in conclusory fashion, that the government did not waive this argument when it conceded, pre-Beckles, that the residual clause of the pre-2016 COG was unconstitutionally vague. The opinion in Castillo, available here, may be of interest to practitioners dealing with the pre-2016 Guidelines, and is more generally worth noting for its loose language  concerning appellate waiver — language that …

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Categories: career offender, categorical approach, manslaughter, waiver

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Friday, June 8th, 2018

Seventh Circuit Holds that Beckles Does Not Apply to Pre-Booker Sentences

More news out of the Midwest:  In United States v. Cross, the Seventh Circuit held that Beckles v. United States applies only to post-Booker cases in which the Sentencing Guidelines were advisory.  In pre-Booker cases in which the Guidelines were mandatory, the residual clause of the career-offender guideline is unconstitutionally vague under Johnson v. United States.…

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Categories: career offender, Johnson

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Refusal to Follow the Actual (and Ice) Methamphetamine Guideline Based on Policy Disagreement

Two judges in the Northern District of Iowa recently have announced that they disagree with on policy grounds, and no longer will follow, the marijuana equivalency called for in the Sentencing Guidelines when imposing sentences in cases involving actual methamphetamine and ice.

The Sentencing Guidelines distinguish between a methamphetamine mixture and actual/pure methamphetamine or ice, which it defines as methamphetamine that is at least 80% pure, treating actual/pure methamphetamine or ice ten times more harshly than a mixture of marijuana.  One gram of actual (pure) methamphetamine or ice has a marijuana equivalency of 20 kilograms whereas one gram of a methamphetamine mixture has an equivalency of 2 kilograms.  The ratio has its roots in 21 U.S.C. 841(b)(1).  Comment 27(c) to U.S.S.G. § 2D1.1 offers the only explanation of the Commission’s view on the relevance of purity to the appropriate sentence, asserting that purity “is probative of the defendant’s role or …

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Categories: drug purity, marijuana equivalency, Methamphetamine

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New Supreme Court Opinions on 3582(c)

Along with some decision about cake, the Supreme Court issued two opinions this week concerning the scope of 18 U.S.C. § 3582(c)(2)’s requirement that, to be eligible for a sentencing reduction, the defendant’s sentence must have been “based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 18 U.S.C. § 994(o).”

In Koons v. United States, the Court issued a short, unanimous opinion holding that a sentence is not “based on” the Guidelines where the defendant was originally sentenced below the mandatory minimum for providing substantial assistance to the government. When the government so moves, see U.S.S.G. § 5K1.1, the district court is authorized to “impose a sentence below” the statutory minimum “so as to reflect a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense.” 18 U.S.C. § 3553(e). The Court held that, under …

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