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. … Read more
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. § … Read more
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 … Read more
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.
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, … Read more
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. § … Read more
This week the Supreme Court issued two opinions, both of which seem relatively straightforward in their holdings. — In Collins v. Virginia, the Court held that the automobile exception to the Fourth Amendment does not permit a warrantless search of a vehicle parked within the curtilage of a home. In Collins, police officers tracked a … Read more
This week the Supreme Court issued a number of significant criminal opinions, as well as a number of GVRs signalling that the holding of Sessions v. Dimaya likely extends to § 924’s residual clause (18 U.S.C. § 924(c)(3)(B)). In McCoy v. Louisiana, 16-8255, the Court held that it was structural Sixth Amendment error for an attorney … Read more
The Supreme Court issued a number of significant opinions yesterday, but it is worth highlighting an important district court decision that might otherwise escape notice. This month, Southern District Judge Gregory Woods issued an opinion and order granting a new trial based on the government’s inadvertent failure to provide Jencks Act material—specifically the notes of … Read more
Today the Second Circuit issued an amended opinion in United States v. Hill, holding that Hobbs Act Robbery is a crime of violence under 18 U.S.C. 924(c)(3)(A) (924(c)’s so-called “force clause”). The good news about the decision is that it omits the portion of the earlier-issued opinion that upheld against a vagueness challenge 18 U.S.C. … Read more