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
No opinions or relevant summary orders from the Second Circuit today. But, big news from SDNY on solitary confinement: Yesterday, Judge Scheindlin approved a settlement in Peoples v. Annucci that will overhaul solitary confinement in New York state prisons. The settlement is about what is called the “SHU,” which is pronounced like “shoe,” and is … Read more
The Office of the Inspector General released this review of BOP medical staffing challenges. According to the March 2016 report, BOP staffing shortages limit inmate access to medical care and impact the safety and security of BOP facilities. The report may be useful at sentencing to demonstrate that the BOP will not provide adequate care … Read more
No opinions or relevant summary orders from the Second Circuit today. Operating with only 8 justices, a fractured Supreme Court today decided Luis v. United States. The Court’s holding is that “pretrial restraint of legitimate, untainted assets needed to retain counsel of choice violates the Sixth Amendment.” Justice Breyer’s plurality opinion, joined by Chief Justice Roberts … Read more
No relevant opinions today; two summary orders. In United States v. Grady, Syracuse police noticed that Grady’s car was parked in violation of the city’s odd/even street parking rules. They approached the car, shone their flashlights inside and saw, in plain view, a bag of crack cocaine on Grady’s lap. A loaded gun was also found in … Read more
The Second Circuit today issued a summary order affirming the denial of a motion for a new trial. Unites States v. Jiau, 15-366. On a motion for a new trial based on newly discovered evidence, the defendant bears the burden of establishing “(1) the evidence is genuinely ‘new,’ i.e., it was discovered after trial; (2) the evidence could … Read more
Yesterday in the SDNY, Judge Lewis A. Kaplan found that the career offender guidelines overstated the seriousness of the offense in a case involving a conviction under 21 U.S.C. 841(b)(1)(C), and that a sentence within the career offender guideline range of 151-188 months would have resulted in a sentence greater than necessary to achieve the … Read more