In last year’s Johnson v. United States, the Supreme Court held the residual clause of the Armed Career Criminal Act (ACCA) void for vagueness. In today’s Welch v. United States, the Supreme Court held Johnson applies retroactively. Only Justice Thomas dissented. This means defendants serving final sentences — meaning ones previously affirmed on appeal — are now eligible for … Read more
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 … Read more
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
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