Today the Supreme Court decided that Johnson announced a new substantive rule that has retroactive effect in cases on collateral review. You can read the opinion in Welch v. United States here.…
No published opinions today, and only one notable summary order involving an SEC civil enforcement action.
SEC v. DAVID SMITH, LYNN SMITH, et al., Nos. 15-1314-cv(L), 15-1317-cv(con), 15-1354-cv(con) (Summary Order of April 18, 2016) (Pooler, Park, and Livingston). This summary affirmance addressed multiple disgorgement orders by a district court in a civil enforcement action relating to violations of the securities laws.
Defendant David Smith, who was ordered to return $87,433,218 obtained from investors, claimed that collateral estoppel limited the disgorgement amount in the SEC case to the amount awarded in restitution in a preceding criminal action. The court disagreed and noted that the SEC allegations proven spanned from 2003 to 2009, whereas the criminal cases addressed only from 2006 to 2009. In addition, the court declared that disgorgement and restitution are “separate remedies with separate goals, and need not be treated the same.”
Defendants David and Lynn Smith together …
No published opinions today, only two summary orders: a direct appeal and a collateral (§2255) challenge.
UNITED STATES v. JAMES PASS, No. 15-1446-CR (Summary Order of April 15, 2016)(Kearse, Cabranes, and Chin). This summary affirmance is interesting for the Circuit’s criticisms of how the judge conducted this sentencing in the E.D.N.Y.
Defendant Pass claims three categories of errors occurred at his E.D.N.Y. sentencing. He claims the district court (1) committed several procedural errors; (2) erroneously allowed him to proceed pro se; and (3) abused its discretion in refusing to adjourn the sentencing. Although the Circuit affirmed the top-of-the-range 71-month sentence (for a felon-in-possession conviction), it expressed concern about the judge’s handling of the sentencing.
Defendant Cannot Benefit on Direct Appeal from Guideline Amendment that Became Effective after His Sentencing if Amendment Is Substantive rather than Clarifying (unless the Commission Determines that the Amendment Should Have Retroactive Effect under § 1B1.10)
In United States v. Miguel Jesurum, No. 14-4464-cr (2d Cir. April 14, 2016), the Court (op. by Pooler, joined by Kearse and Sack) rejects appellant’s argument that (1) the sentencing court erred in finding that the offense “involved more than 250 victims,” which led to a 6-level enhancement under the 2014 version of U.S.S.G. § 2B1.1(b)(2)(C); and (2) he should receive the benefit of a 2015 amendment to the same Guideline, which became effective after his sentencing and which now calls for the same enhancement only where the offense “resulted in substantial financial hardship to five or more victims.”
The first argument fails under the plain language of Commentary to the Guideline. Application …
Lawyers in both districts should be aware of a change in ICE detainer policy. The old so-called “detainer” form (1-247) is being retired and replaced with three different forms. The change in policy is summarized here on the ICE website.
One of the new forms, the I-247N, is a request for voluntary notification of the impending release of a “suspected priority alien”, but it does not request or authorize the continued detention of individuals beyond the point they otherwise would be released. The form says on its face that it does not request or authorize detention. It also says on its face that it should not impact decisions about bail, release, or other matters. Despite these changes, prosecutors and agents may refer to the I-247N as a “detainer” and may argue at a bail hearing that it authorizes your client’s detention.
In light of the change in ICE policy …
On Friday, in the EDNY, Magistrate Judge Viktor V. Pohorelsky found that the Adam Walsh Amendments to the Bail Reform Act violate the Due Process Clause of the Fifth Amendment and the Excessive Bail Clause of the Eighth Amendment. The case was United States v. Kim, 16-mj-280 (VVP), and the transcript is available here: Kim_16MJ280_Transcript 4.8.16.
For those charged with crimes involving a minor, Adam Walsh requires the nondiscretionary imposition of specific pretrial release conditions, including electronic monitoring and a curfew, depriving defendants of any opportunity to contest whether such conditions are necessary, and denying judges the ability to make individualized determinations as to the least restrictive bail conditions. In this case, where the defendant is charged with receipt and possession of child pornography, the court found that electronic monitoring was not necessary to assure his appearance or the safety of the community. Judge Pohorelsky ordered that the …
The Second Circuit today issued a summary order affirming the denial of a reduction in sentence under 18 U.S.C. 3582(c)(2) and Amendment 782 to the Sentencing Guidelines. In United States v. Johnson, 15-2051-cr, the Court held that because Mr. Johnson’s guideline range remained 360-life even after Amendment 782, the District Court correctly concluded he was ineligible for a Section 3582(c)(2) reduction. Mr. Johnson’s other arguments related to possible procedural errors in the calculation of his base offense level at his original sentencing were not proper on a motion for a sentence reduction.…
In 1989, when he was 16 years old, Alex Wong, a teen runaway who had been recruited by a violent street gang, committed a murder during an extortion gone awry. He was convicted of RICO conspiracy and sentenced to life under the mandatory Guidelines. On Friday, in light of the Supreme Court’s decisions in Miller v. Alabama, 132 S. Ct. 2455 (2012) (holding that the Eighth Amendment prohibits a mandatory LWOP sentence for a juvenile), and Montgomery v. Louisiana, 136 S. Ct. 718 (2016) (holding that Miller applies retroactively), Judge Dearie vacated the life sentence and resentenced Wong to 35 years. Citing developments in neuroscience regarding juvenile brain development, Judge Dearie told Wong: “It does give us hope that perhaps you did not fully understand and assess the full range of consequences.”
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No published opinions from the Circuit.
In a summary order (United States v. …
No decisions or orders out of the Second Circuit today. Two interesting notes:
In a summary order, the Court declined to reach as plain error whether Aggravated Identity Theft, under 18 U.S.C. § 1028(c)(5), requires the government to prove that the individuals did not consent to the unlawful use of their identities. The majority of circuits to consider the issue have rejected the argument. It is an open question in the Second Circuit.
-Philip Weinstein
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There were no opinions in criminal cases from the Circuit this day. The Circuit issued a single summary affirmance in United States v. Miller, No.15-108-cr, where it rejected the defendant’s claim that his 144-month – but nevertheless below-Guidelines – sentence was substantively unreasonable.
United States v. Miller, No.15-108-cr:
Miller was convicted of a drug distribution conspiracy ( 21 U.S.C. § 846) involving a (b)(1)A)-quantity of drugs — i.e., 21 U.S.C. § 841. The drugs were more than 1,000 kilograms of marijuana. He committed the offense “while on supervised release from a prior conviction for cocaine trafficking and firearms possession.” His sole contention on appeal, according to the Circuit, was that his 144-month prison sentence, which was a downward variance from a Guidelines range of 151 to 188 months, “was substantively unreasonable the because the only reasonable sentence is one at the statutory minimum of 120 months’ …