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
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
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
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
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
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
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
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 … Read more
If you move from Kansas to the Philippines, do you still “reside” in Kansas? Seems simple, right? The Supreme Court thought so, too. In Nichols v. United States, No. 15–5238, the Court said no, in a unanimous, eight-page opinion issued just a month after oral argument. Lester Nichols was convicted of a sex offense and … Read more
There were no Circuit opinions or summary orders today. The Supreme Court decided Nichols v. United States, No. 15–5238. A unanimous Court, per Justice Alito, held that a sex offender residing in Kansas who moved to the Philippines could not be prosecuted under SORNA for failing to update his registration in Kansas after the move. … Read more