Federal Defenders of New York Second Circuit Blog

A Panel of the Second Circuit holds (over a dissent) that a non-citizen is removable for a crime involving moral turpitude “for which a sentence of one year or longer may be imposed” — under 8 U.S.C. § 1227(a)(2)(A)(i) — even though New York subsequently reduced the maximum sentence for Class A misdemeanors from one year to “364 days” and made the change retroactive. Vasquez v. Garland, No. 21-6380, __ F.4th ____ (2d Cir. Sept. 13, 2023) (C.J.J.’s Jacobs and Chin; C.J.J. Robinson dissenting).

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I. Background Under 8 U.S.C. § 1227(a)(2)(A)(i) —  which is Section 237(a)(2)(A)(i) of the Immigration and Nationality Act (“INA”) — a non-citizen “is deportable” if “convicted of a crime of moral turpitude” (committed within a specified period “after the date of admission”) “for which a sentence of one year or longer may be imposed.” (emphasis … Read more

Second Circuit Affirms 18 U.S.C. § 115(a)(1)(B) Conviction And Sentence For Defendant Who Posted “Kill Your Senators” Video Online

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In United States v. Hunt, No. 21-3020 (2d Cir. Sept. 20, 2023) (Walker, joined by Parker and Bianco), the Circuit affirmed Hunt’s conviction and sentence for threatening to assault and murder United States officials, in violation of 18 U.S.C. § 115(a)(1)(B), based on Hunt’s online posting of a video entitled “Kill Your Senators.” In the … Read more

Drug-distribution premises sentencing enhancement applies to dealing drugs from premises formerly used as residence

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In United States v. Vinales, No. 22-331-cr (Aug. 29, 2023), the panel (Lynch, Lohier, and Bianco) issued a per curiam opinion affirming application of the drug-distribution premises enhancement of U.S.S.G. § 2D1.1(b)(12). Vinales was charged with selling drugs out of an apartment where he had once resided, but no longer did at the time of … Read more

Selling cocaine in NY is not a “serious drug offense” under ACCA

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Affirming Judge Koeltl, the Second Circuit has ruled in U.S. v. Minter that selling cocaine, in violation of N.Y. Penal Law § 220.39(1), is not a “serious drug offense” under the Armed Career Criminal Act, 18 U.S.C. § 924(e). Why not?  Because “New York’s definition of cocaine is categorically broader than its federal counterpart.”  Slip … Read more

Another Day, Another 922(g) Section Found Unconstitutional under Bruen: this time it’s 922(g)(3) prohibiting an “unlawful” drug user from having a gun

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This week, in United States v. Daniels, the Fifth Circuit held that a person’s conviction under 922(g)(3) was unconstitutional following Bruen. The facts of Daniels are straightforward: Daniels was found with guns and marijuana in his car and then admitted he was a habitual marijuana user. He was charged and convicted of violating Section 922(g)(3). … Read more

De novo resentencing required after district court imposed a supervised-release term, following revocation, that exceeded the statutory maximum

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In United States v. Sire Gaye, 2d Cir. No. 22-251-cr (August 4, 2023), the panel (Judges Park, Nardini, and Nathan) issued a per curiam opinion vacating the district court’s revocation sentence and remanded for de novo resentencing. Although only the supervised-release portion of the revocation sentence was unlawful – the five-year term exceeded the statutory … Read more

For computer offenses of “causing damage” to a computer, Second Circuit allows venue in the location of any computer that was prevented from accessing files that were unlawfully deleted from the remote server of a software vendor.

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In United States v. Calonge, No. 21-3089 (2d Cir. July 14, 2023) (Parker, Lynch, Lohier), the Circuit affirmed convictions under the Computer Fraud and Abuse Act (“CFAA”) in the Southern District of New York for transmitting a program code or command and intentionally “caus[ing] damage” to a computer and accessing a computer without authorization and … Read more

Second Circuit finds that VICAR murder may categorically qualify as a crime of violence

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This week, in United States v. Davis, No. 21-1486-cr (2d Cir. July 18, 2023), the Circuit holds that murder in aid of racketeering (also known as “VICAR murder”), 18 U.S.C. § 1959(a)(1), may categorically qualify as a “crime of violence” for purposes of 18 U.S.C. §§ 924(c) and 924(j)(1). In Davis, the defendant argued that … Read more

Application of the Maritime Drug Law Enforcement Act (“MDLEA”) to foreign conspirators who were never on the high seas, and where neither the defendants nor the scheme have a nexus to the United States, does not violate Due Process or Article I.

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In United States v. Antonius, No. 21-1083 (2d Cir. July 10, 2023) (Calabresi, Lynch, and Robinson), the Second Circuit affirmed the convictions of three land-based foreign nationals for conspiracy to traffic drugs on the high seas using a stateless vessel where neither the defendants nor the conspiracy had any connection to the United States. The … Read more