Federal Defenders of New York Second Circuit Blog

Categorical Approach Updates from First and Ninth Circuits (Including on 2nd-Degree NY Robbery’s Status under the Career Offender Guideline)

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Two valuable opinions have been published outside the Second Circuit in recent weeks: (1) The First Circuit has  held that attempted second-degree robbery in New York is not a “crime of violence” for purposes of the Career Offender Guideline’s force clause, U.S.S.G. § 4B1.(2)(a)(1). The opinion in United States v. Steed, No. 17-1011 (1st Cir. 2018) (Barron, J.) … Read more

6th Amendment Speedy Trial Right Violated In Case Raising Interesting Attorney-Client Issues

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Today the Second Circuit ordered that a defendant’s indictment be dismissed with prejudice because his 6th Amendment speedy trial right was violated. The opinion in United States v. Tigano, 15-3073 (2d Cir. 2018) (Winter, Walker, Pooler), available here, is a case study in “poor trial management,” slip op at 5, and the improper use of competency hearings. (Like … Read more

Recent “Trujillo” Decisions and Resources

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Today Judge Vitaliano (EDNY) dismissed an indictment with prejudice after ruling that the government must choose between (1) complying with the Bail Reform Act or (2) continuing to hold the defendant in immigration detention notwithstanding that she had been released on bond.  See United States v. Lopez, 17-cr-683 (1/19/18 electronic order). This decision is the most recent … Read more

Supreme Court GVR (and Government Confession of Error) in Speedy Trial Act Case

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Sentencing Resource Counsel Ada (“Sissy”) Phleger has the details, including as to the practical relevance of the case: On Monday, the Supreme Court granted-vacated-and-remanded a case involving the Speedy Trial Act, White v. United States (17-270), in light of the Solicitor General’s confession of error. While the Government’s confession blocked merits review in Mr. White’s … Read more

Burdens of Proof & Restitution Under The MVRA

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Yesterday the Second Circuit issued a short opinion concerning the burdens of proof for modifying restitution orders under the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. §§ 3663A & 3664. Specifically, the panel held that the district court acted within its discretion in requiring the defendant to prove that a victim recovered money in civil litigation “for … Read more

Federal Defender Fact Sheet Challenging Link Between Judicial Discretion and Racial Sentencing Disparities

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The Federal Defenders Guidelines and Legislative Committees have released a fact sheet, available here, critiquing a recent Sentencing Commission report which concludes that racial disparities in sentencing have increased in the wake of Booker.  In November 2017, the Sentencing Commission released a report concluding that “the gap between the sentence lengths for Black and White male offenders [has] … Read more

Second Circuit Reverses Denial of USSG §3E.1.1(b) Sentencing Reduction

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Today the Second Circuit vacated a sentence as procedurally unreasonable because the sentencing judge withheld the third point of a Guideline reduction for acceptance of responsibility. The summary order in United States v. Reyes, No. 16-2936 (Winter, Lynch, Droney) (appeal from Townes, J., EDNY), is available here. Mr. Reyes was sentenced to life imprisonment after pleading guilty … Read more

EDNY Requires Government to Choose Between Complying With Bail Reform Act and Detaining for Immigration Removal

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In an otherwise slow holiday week, Eastern District Chief Judge Irizarry has reaffirmed that ICE cannot detain noncitizens who are being federally prosecuted and have met their bond conditions. The opinion in United States v. Benzadon Boutin, No. 17-cr-590 (DLI), is available here. The decision is the latest in the “Trujillo” line of cases, see United States v. Trujillo-Alvarez, … Read more

Second Circuit Holds that First-Degree Robbery is a Violent Felony Under the ACCA

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In a disappointing but relatively narrow opinion, the Second Circuit held yesterday that first-degree New York robbery is a violent felony for purposes of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). The opinion in United States v. Stuckey, No. 16-4133 (Chin, Droney, Restani (Ct. Intl. Trade) (appeal from Oetken, J., SDNY), is available here. Significantly, the … Read more

Second Circuit Holds that a Request for Cooperation Can Constitute an Interrogation

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Today the Second Circuit concluded that a request for cooperation can constitute an interrogation for Miranda purposes. United States v. Familetti, No. 16-2334 (Jacobs, Sack, Parker) (appeal from Preska, J., S.D.N.Y.). The Circuit held, however, that the defendant in Familetti was not under custody when the cooperation request occurred — notwithstanding that he had earlier been handcuffed while … Read more