Supreme Court Update on Johnson Retroactivity
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.
Second Circuit Updates – April 18, 2016
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 … Read more
Second Circuit Updates – April 15, 2016
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 … Read more
Second Circuit Updates – April 14, 2016
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 … Read more
New ICE Form I-247N Does Not Authorize Detention
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 … Read more
EDNY Update: Judge Pohorelsky Finds Adam Walsh Act Mandatory Bail Provision Unconstitutional, Judge DeArcy Hall Reverses Bail Determination
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 … Read more
No Reduction in Sentence Where Amendment 782 Does Not Reduce the Guidelines Range
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 … Read more
EDNY: Dearie Reduces JLWOP Sentence to 35 Years
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 … Read more
Second Circuit Updates – April 7, 2016
No decisions or orders out of the Second Circuit today. Two interesting notes: An attorney in Albany received a public reprimand and a two-year ban from practicing as a CJA lawyer before the Second Circuit for “engaging in conduct unbecoming a member of the bar.” The attorney had failed to file documents in a timely … Read more
Second Circuit Updates – April 6, 2016
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 … Read more