Federal Defenders of New York Second Circuit Blog

Second Circuit Holds That NYPL § 220.31 (5th Degree Criminal Sale of a Controlled Substance) Is Not A “Controlled Substance Offense” Under USSG 4B1.2(b)

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Last week the Second Circuit held that NY Penal Law § 220.31 (fifth-degree criminal sale of a controlled substance) is not a “controlled substance offense” under USSG 4B1.2(b). See United States v. Townsend, No. 17-757 (2d Cir. 2018) (Cabranes, Carney, Vilardo (W.D.N.Y.)) (appeal from Irizarry, C.J., E.D.N.Y.). The opinion is available here. The upshot of Townsend … Read more

Second Circuit Narrowly Construes Appellate Waiver and Holds That Embezzlement Is Not a Continuing Offense

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In a short and interesting opinion, available here, the Second Circuit held today that (1) a defendant did not waive her right to appeal a restitution order on the ground that it covered conduct outside the statute of limitations period, and (2) that violations of 18 U.S.C. § 641 (embezzlement of government property) are not … Read more

Judge Kavanaugh on Criminal Law: Bad News Except…

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Bloomberg News has an article (behind a paywall) that surveys Judge (and presumptive Justice) Kavanaugh’s criminal law jurisprudence.  The short story is that Judge Kavanaugh has been very bad for criminal defendants; one former SDNY prosecutor predicts that “he will be a reliable vote for the government in criminal cases, along the lines of Justice … Read more

NACDL Report on the Trial Penalty

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The National Association of Criminal Defense Lawyers (NACDL) recently released a report that is somewhat provocatively, but fairly, titled: The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It.  The report, available here, offers a succinct assessment of the legal and institutional pressures that coerce 97% … Read more

Judge Weinstein Urges More Frequent Termination of Supervised Release (Including for Marijuana Users)

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Last week Judge Weinstein issued a remarkable opinion, available here, terminating supervised release for a defendant who, apart from habitual marijuana use, has committed no crimes since his release from prison. See United States v. Trotter, No. 15-cr-382, DE 543 (E.D.N.Y. July 5, 2018). The lengthy-but-readable opinion is worth reading in its entirety, particularly for … Read more

Second Circuit Reversal of Vulnerable Victim Sentencing Enhancement

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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 … Read more

Recap of Supreme Court Decisions in Carpenter and Currier

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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 … Read more

Plain Error Under Rosales-Mireles

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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” … Read more

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

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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 … Read more

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

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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 … Read more