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Federal Defenders of New York Second Circuit Blog


Sunday, March 21st, 2010

Sex Offender Goes South, As Does His Defense

United States v. Van Buren, No. 08-6262-cr (2d Cir. March 17, 2010) (Walker, Straub, Livingston, CJJ)

A jury convicted Van Buren of failing to comply with the registration requirements of SORNA after he moved from his hotel in Binghamton, New York, to his mother’s house in North Carolina without updating his New York registration or registering in North Carolina.

On appeal, he first raised a host of constitutional challenges, all of which were foreclosed by United States v. Guzman, an intervening decision. See Moving Violations, posted January 7, 2010.

He also claimed that the district court erred in its jury instructions about the scope of SORNA’s registration requirements. The statutory scheme requires a convicted sex offender to register, and keep the registration current – including providing the address of his residence – in each jurisdiction where he resides, is employed or is a student. In addition, within three business days …

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An Unwelcome Edition

United States v. Gilmore, No. 07-0349-cr (2d Cir. March 17, 2010)
(Leval, Katzmann, Livingston, CJJ)

In 2005, Gilmore pled guilty to producing child pornography. He faced a fifteen-year mandatory minimum and a thirty-year maximum sentence. His plea agreement included a non-binding estimate that indicated that his guideline sentence was life imprisonment but that, since this exceeded the statutory maximum, the applicable guideline sentence would be thirty years. This estimate was based on the 2004 Edition of the guideline manual, the version in effect at the time of Gilmore’s sentencing, but the government later realized that this was erroneous because it resulted in a harsher sentence than the 2003 Edition, which was in effect at the time of the offense.

Gilmore’s PSR used the 2003 Edition, under which the guideline range was ninety-seven to 121 months’ imprisonment. Since this was less than the mandatory minimum, the PSR concluded that the guideline …

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Categories: ex post facto, Uncategorized

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Saturday, March 20th, 2010

An Exercise in Frivolity

United States v. Davis, No. 08-3240-cr (2d Cir. March 15, 2010)
(Winter, Sack, CJJ, Cogan, DJ)

Davis pled guilty to a two-count child pornography indictment. He faced a 60-month mandatory minimum and a guideline range of 97 to 121 months’ imprisonment. At sentencing, he argued forcefully for a 60-month sentence, focusing on his age and health problems as well as his conduct – he had no contact with a child, and did not distribute the images. The court sentenced him at the bottom of the range, noting “I see no reason to deviate form the ranges that are set forth in the Sentencing Guidelines.”

On appeal, he argued that the sentence was procedurally unreasonable because the district court treated the guidelines as presumptively reasonable, and that it was substantively unreasonable for largely the same reasons he cited in the district court. The government, in response, did not file an opposition …

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Sunday, March 14th, 2010

Summary Summary

Summary orders of interest have literally been piling up on my desk. Here’s the latest crop:

In United States v. Muse, No. 07-4482-cr (2d Cir. March 11, 2010), the court vacated the sentence where the district court erroneously believed that jury’ finding on a special interrogatory indicated that the defendants had been convicted only of a misdemeanor.

In United States v. Nazario, No. 09-0953-cr (2d Cir. March 11, 2010), the court noted, but did not resolve, the looming tension between Samson v. California, 547 U.S. 24 843, 857 (2006), which held that for a California parolee the Fourth Amendment does not prohibit suspicionless searches, and the court’s own precedents on the reasonableness of parole searches.

In United States v. Gardner, No. 08-4793-cr (2d Cir. March 10, 2010), the court remanded for resentencing where, under Williams, the defendant was not eligible for the mandatory consecutive § 924(c) sentence that he received. …

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Checking References

United States v.Deandrade, No. 08-4815-cr (2d Cir. March 12, 201(Jacobs, Hall, CJJ, Murtha, DJ)

At Deandrade’s trial, two cooperating witnesses mentioned that he was incarcerated during his trial. The district court denied his mistrial motions, and on appeal, the circuit affirmed.

Deandrade argued that those references improperly impaired the presumption of innocence under Estelle v. Williams, 425 U.S. 501 (1976). The circuit disagreed, noting that in situations like this, several other courts have held that under Estelle “brief and fleeting references are generally allowed, but extended comment is impermissible.” The circuit agreed, holding that “a brief and fleeting comment on the defendant’s incarceration during trial, without more, does not impair the presumption of innocence to such an extent that a mistrial is required.”

There was accordingly no error here. The remarks were isolated, “apparently unintentional on the part of the prosecution,” incidental to legitimate questioning and the government did not …

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Saturday, March 13th, 2010

PC World

United States v. Muse, No. 07-4483-cr (2d Cir. March 11, 2010)(Walker, Calabresi, Wesley, CJJ) (per curiam)

Two defendants in a large khat prosecution appealed the multi-million dollar forfeiture orders against them, arguing that a defendant in a drug case is not subject to forfeiture where he does not have assets to satisfy the judgment at the time of sentencing. The court joined the First, Third, Seventh and Ninth Circuits in rejecting that argument and holding that 21 U.S.C. § 853 permits imposition of a money judgment on a defendant who has no assets at the time of sentencing. The court noted that this was consistent with the statute’s language and purpose and that a contrary interpretation “could have the undesirable effect of creating an incentive for an individual involved in a criminal enterprise to rid himself of his ill-gotten gains to avoid the forfeiture sanction.”…

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Glock-In-Trade

United States v. Gardner, No. 08-4793-cr (2d Cir. March 10, 2010)(Feinberg, Katzmann, CJJ, Castel, DJ)

18 U.S.C. § 924(c)(1)(A) makes it a crime to possess a firearm in furtherance of a drug trafficking crime. Here, the defendants challenged the applicability of this section in their case, where they purchased firearms using drugs as payment.

The trial evidence showed that the defendants acquired two firearms and paid for them with drugs, specifically an “onion” – one ounce of crack cocaine. They instructed the gun seller to sell the crack and give them $200 – the difference between the value of the drugs and that of the guns.

In affirming, the circuit began with a bit of history. The pre-1998 § 924(c) did not have an “in furtherance” requirement. It made it a crime only to use or carry a firearm “during and in relation to” a drug trafficking offense. Under that …

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Final Examination

United States v. Culbertson, No. 09-0485-cr (2d Cir. March 10, 2010) (Miner, Cabranes, CJJ, Rakoff, DJ)

Defendant Troy Culbertson, acting pro se, moved in the circuit for poor person’s relief and for appointment of counsel to pursue an interlocutory appeal of the district court’s orders (1) denying his speedy trial motion, (2) refusing to appoint him new counsel, and (3) denying his request for a psychiatric evaluation. Noting that the appealability of these last two orders presented questions of first impression in the Second Circuit, the court found that none of the orders was “final” and dismissed the appeal.

By way of background, Culbertson was arrested at the airport, where he met up with a known drug courier. He was detained and within a month went through three appointed attorneys. After his arraignment, he filed a pro se motion to dismiss the indictment on speedy trial grounds, which the court …

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Trailer Trashed

United States v. Navas, No. 09-1144-cr (2d Cir. March 8, 2010) (Leval, Wesley, CJJ, Gleeson, DJ)

In connection with a narcotics investigation, DEA agents watched the defendants unload a tractor-trailer at the Hunts Point Market. The defendants then drove it to a private warehouse, where they parked it, unhitched the cab, and lowered the legs in front of the trailer to stabilize it.

After further surveillance, the agents arrested the defendants, one of whom admitted that drugs were hidden in a rooftop compartment of the trailer. After receiving verbal consent to search the warehouse and its contents, but with no search warrant, the agents ripped open the roof of the trailer and discovered 230 kilograms of cocaine.

The district court suppressed the cocaine. It rejected the argument that the verbal consent to a general search of the warehouse extended to a physically invasive search of the trailer. The court also …

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Strong Arm Of The Law

United States v. Walker, No. 08-3874-cr (2d Cir. February 18, 2010) (Feinberg, Katzamann, CJJ, Ellis, DJ)

Here, the circuit upheld the use of Walker’s prior conviction for “strong arm robbery” – a South Carolina common law offense – as a “crime of violence” to enhance his offense level under the firearms guideline. The court rejected the argument that only statutory offenses can be used as guideline enhancements, agreeing with the Ninth Circuit that “when a state crime is defined by specific and identifiable common law elements, rather than by a specific statute, the common law definition of a crime serves as a functional equivalent of a statutory definition.” Common law offenses are just as amenable as statutory offenses to the “categorical approach for enhancement determinations.”

The guideline at issue expressly includes “robbery” as a “crime of violence.” Thus, since “strong arm robbery” in South Carolina corresponds in substance to the …

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The Liar’s Flub

United States v. Savoca, No. 08-4610-cr (2d Cir. February 25, 2010) (Sack, Parker, CJJ, Goldberg, JCIT)

Defendant Savoca and his brother were both charged in an attempted robbery and shooting. Savoca accepted a plea agreement to a Hobbs Act attempt with a 37 to 46 month range and a “discharge” 924(c) with a mandatory 120-month consecutive sentence, for a total range of 157 to 166 months, including a 3-level reduction for acceptance of responsibility.

After he pled, but before his sentencing, Savoca testified at his brother’s trial and unsuccessfully tried to exonerate him. After the brother’s conviction, when Savoca was sentenced, the district court found that he committed perjury at the trial. It accordingly added 2 levels for obstruction of justice and denied him the 3-level reduction for acceptance of responsibility. With a new range of 183-198 months, the court sentenced Savoca to 190 months, and noted that it would …

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