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Federal Defenders of New York Second Circuit Blog


Thursday, May 26th, 2016

No Wins for Criminal Defendants Today

The Court issued two summary orders in criminal cases today. Neither Appellant prevailed.

  1. United States v. Humphries, No. 14-985-cr (2d Cir. May 26, 2016) (Cabranes, Straub, and Lohier)

Humphries was convicted after a jury trial of interstate travel in aid of racketeering, conspiracy to commit wire fraud to defeat Canadian tax revenue, conspiracy to manufacture tobacco products without a license, and money laundering. He was sentence to 72 months in prison.

On appeal, Humphries raised four arguments: (1) insufficiency of the trial evidence; (2) improper preclusion of certain affirmative defenses; (3) constructive amendment of the indictment; and (4) improper failure to suspend jury deliberations when it became “apparent” that he was no longer competent to stand trial. The Court addressed only the sufficiency argument, rejecting the other three claims without discussion.

The Court first held that the evidence was sufficient to establish Humphries’s intent to “distribute the proceeds of …

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Categories: criminal history, sufficiency, supervised release

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Categories: criminal history, sufficiency, supervised release

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Wednesday, May 25th, 2016

Judge Block Issues Opinion Calling for Reconsideration of Collateral Consequences for Felony Convictions and Highlighting the Role Collateral Consequences Should Play in 3553(a) Analysis

Senior Eastern District Judge Frederic Block issued a 42-page opinion in United States v. Nesbeth, 15-CR-18(FB),  calling for a close reexamination of the collateral consequences that follow felony convictions, the ways these consequences hamper rehabilitation efforts, and their inclusion as a factor in determining the appropriate sentence under 18 U.S.C. 3553(a).  (N.B. Ms. Nesbeth was represented by Amanda David and the Eastern District Office of the Federal Defenders of New York.)

Following a jury trial in the case, Judge Block imposed a one-year probationary sentence in a case with a guidelines range of 33-41 months.  He then issued the lengthy opinion because “sufficient attention has not been paid at sentencing” to the many automatic collateral consequences that flow from a defendant’s felony conviction.  Many of these consequences, he wrote, “serve no useful function other than to further punish criminal defendants after they have completed their court-imposed sentences” but their …

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Categories: collateral consequences, sentencing

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Categories: collateral consequences, sentencing

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Monday, May 23rd, 2016

Remand for resentencing to consider the difference between substantive conspiracy liability and the scope of relevant conduct for guidelines purposes; Remand for resentencing under § 3582(c)(2)

The Second Circuit issued four summary orders in criminal cases today.

United States v. Rigo, 15-1914, remanded the case for resentencing. The Second Circuit held that the district court committed plain error in calculating the loss amount for the purposes of determining the guideline range. The Circuit explained that “the scope of conduct for which a defendant can be held accountable under the sentencing guidelines is significantly narrower than the conduct embraced by the law of conspiracy.” Order at 2. The “emphasis in substantive conspiracy liability is the scope of the entire conspiracy” but the guidelines are concerned with “the scope of the individual defendant’s undertaking.” Id. (emphasis in original). In other words, even if the acts of co-conspirators were foreseeable to the defendant, they do not constitute relevant conduct for guidelines purposes if they were “not within the scope of the defendant’s agreement.” Id. at 3. …

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Categories: 3582(c)(2), conspiracy, relevant conduct, Rule 11, sentencing findings

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Categories: 3582(c)(2), conspiracy, relevant conduct, Rule 11, sentencing findings

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Friday, May 20th, 2016

Second Circuit Updates – May 20, 2016

There were three summary orders from the Second Circuit. Of particular interest is the Court’s order in United States v. Choudhry, No. 15-1737-cr. There a panel of the Second Circuit (Newman, Cabranes, Lohier, Jr.) addressed, among other issues, whether jury instructions regarding the charge of transmission of a threat to injure were erroneous in light of the Supreme Court’s decision in Elonis v. United States, 135 S. Ct. 2001 (2015). As I’ve written about here before, and as this case demonstrates, courts are still struggling with the boundaries of Elonis.

The District Court in Choudhry gave the following instruction:

“[a] statement is a threat if it was made under such circumstances that a reasonable person hearing or reading the statement [who] was familiar with the context of the threat would interpret it as a threat of injury.”

But, as the Second Circuit noted, in Elonis, …

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Categories: jury instructions, plain error

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Categories: jury instructions, plain error

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Thursday, May 19th, 2016

District court’s decision denying a motion for a sentence reduction under 18 U.S.C.§ 3582(c)(2) is vacated — explanation was insufficient to permit meaningful appellate review

United States v. Mazza, No.15-2394-cr  (2d Cir. May 19, 2016)
(summary order) (Jacobs, Parker, and Raggi).

Congratulations to the Federal Defenders in New Haven for obtaining a vacatur and remand of a district judge’s refusal to grant a defendant’s motion for a reduction of sentence under 18 U.S.C.  § 3582(c)(2).  In this summary order, the Circuit concluded that the district judge’s explanation for the summary denial of the motion was not sufficient for meaningful appellate  review, even under an abuse- of-discretion standard.

Mazza  had been convicted and sentenced in 2011 for a marijuana conspiracy:  for conspiring to manufacture and possess with intent to distribute over 1000 marijuana plants. The district court sentenced Mazza to 168 months in prison, which was the top of the Sentencing Guidelines range (of 135-168 months) as calculated at the 2011 sentencing.

But under a subsequent retroactive amendment to the Guidelines  — Amendment 782,  reducing …

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Categories: 3582(c)(2)

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Monday, May 16th, 2016

Second Circuit Vacates Sentence Due to Inadequate Factual Determination Regarding Application of the “Otherwise Extensive” Nature of Conduct Enhancement under U.S.S.G. § 3B1.1(a); Affirms Three Convictions in Summary Orders

In United States v. Kent, 14-2082, the Second Circuit vacated a sentence and remanded for resentencing after concluding that the District Court’s application of a 4-level enhancement under U.S.S.G. § 3B1.1(a) was not supported by adequate factual findings.  The district court determined that Mr. Kent was a leader or organizer of criminal activity that was “otherwise extensive” within the meaning of U.S.S.G. § 3B1.1(a)  and applied the 4-level enhancement.  Many of the facts relied upon by the district court in making this determination – including the amount of money Mr. Kent made and the number of victims of the scheme – already were taken into account by enhancements under U.S.S.G. § 2B1.1(b)(1)(H) (the loss amount enhancement) and U.S.S.G. § 2B1.1(b)(2)(B) (the number of victims enhancement).  The Second Circuit explained that relying on loss amount and the number of victims to find that criminal activity was “otherwise extensive” for …

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Categories: conscious avoidance, double counting, sentencing findings

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Friday, May 13th, 2016

NEW RULES OF THE ROAD FOR CJA COUNSEL ABOUT INFORMING CLIENTS OF THEIR RIGHT TO SEEK REHEARING AND REHEARING EN BANC

 Today’s published decision,  JAVEL TAYLOR  v. UNITED  STATES No. 15-827  (Opinion of May 13, 2016)(Katzmann, Chief Judge, Cabranes, Circuit Judge, and Kaplan, District Judge), is addressed to how appointed appellate counsel should advise clients about  seeking rehearing and rehearing en banc from an adverse decision in their case.  Addressing  an issue of first impression for this Circuit, the Court holds that,  under the Criminal Justice Act (“CJA”), 18 U.S.C. §3006A,  indigent defendants have the right to the assistance of counsel in filing petitions for rehearing and for rehearing en banc with the Circuit.  And this right triggers a set of obligations for CJA counsel on appeal.

The case arises from a pro se  petition, under 28 U.S.C.§2255, where Javel Taylor alleged that he did not learn of the Circuit’s decision affirming his conviction and (84-month) sentence, until one month after the decision, and was thereby denied …

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