In United States v. Peña, No. 20-4192 (2d Cir. Dec. 13, 2022), the Circuit ruled that the District Court did not abuse its discretion when it declined to resentence the defendant de novo following the vacatur of two firearms convictions.

Peña was convicted in 2013 of three counts charging him with conspiring to commit, and committing, murder for hire, in violation of 18 U.S.C. § 1958. He was also convicted of two counts of using a firearm to commit murder, in violation of 18 U.S.C. § 924(j). The District Court sentenced him to five concurrent terms of life imprisonment.

Peña later filed a 28 U.S.C. § 2255 motion alleging that his two § 924(j) convictions were invalid. The District Court agreed and vacated those convictions. But the court refused to resentence Peña de novo on the remaining murder-for-hire counts, concluding that resentencing would be pointless because he was …

The Sentencing Guidelines provide that the base offense level for certain crimes must be increased based on the amount of financial “loss.” E.g., U.S.S.G. § 2B1.1(b)(1). The commentary to the Guidelines says that “loss” means the actual or intended loss, whichever is greater. Id. cmt. n.3(A).

In an important new ruling, the Third Circuit held in United States v. Banks, — F.4th —-, 2022 WL 17333797 (3d Cir. Nov. 30, 2022), that this commentary is invalid because, under Kisor v. Wilkie, 139 S. Ct. 2400 (2019), it improperly expands the plain meaning of “loss,” which refers to the actual loss only. In the court’s words:

Our review of common dictionary definitions of “loss” point to an ordinary meaning of “actual loss.” None of these definitions suggest an ordinary understanding that “loss” means “intended loss.” […]

Because the commentary expands the definition of “loss” by explaining that generally …

Earlier this week, on December 6, 2022, the Second Circuit held in United States v. Gibson, No. 20-3049 (2d Cir. Dec. 6, 2022), that a 2002 New York state conviction for attempted third-degree criminal sale of a controlled substance, NYPL 220.39(1) and 110.00, is not a  “controlled substance offense” under the Guidelines.

Gibson was convicted in the WDNY of bank robbery and other offenses. The PSR classified him as a career offender, based in relevant part on a 2002 New York state conviction for attempted third-degree criminal sale of a controlled substance. Gibson objected, arguing that the New York offense did not categorically involve a federally controlled substance, as required under United States v. Townsend, 897 F.3d 66 (2d Cir. 2018). Specifically, Gibson argued, New York’s 2002 drug schedules included the opium derivative naloxegol, but in 2015, the federal government had removed that substance from the federal schedules. …

Defendant-Appellant Zhe Zhang was indicted for participating in a successful murder-for-hire scheme. And the district court ordered him detained pending trial noting, among other things. “[t]hat the charged crime was ‘extremely serious’ and the evidence against Zhang was strong.” 2022 WL 17419594 at *2.

The defendant didn’t, however, appeal the district court’s original decision denying pretrial release. He instead appealed the court’s subsequent decision denying his motion to “reopen” the detention hearing. Id. *3.

At the original detention hearing in the district court (on May 19, 2022), there was “a brief discussion of the possibility of capital punishment,” and the government couldn’t confirm whether it would seek the death penalty “because the matter was still pending with U.S. Department of Justice in Washington, D.C..” Id. at *2. “But the court noted its understanding that, as matter of policy, ‘this Justice Department was not pursuing the death penalty” in this case. …

In 2004, Lawrence Savoca was convicted for using a gun during an attempt to commit Hobbs Act robbery. Since Johnson was decided in 2016, he has been trying to get this 924(c) conviction vacated in lengthy litigation involving three trips to the Second Circuit. First, the Circuit granted his request to file a successive habeas petition. But then the district court dismissed his motion, holding that it wasn’t based on a new rule of constitutional law. Second, Savoca appealed and the Second Circuit affirmed.

But, Savoca (and Ed Zas of the Federal Defenders) wasn’t done. After the Supreme Court decided Taylor, Savoca filed a rehearing petition. Yesterday, in a third ruling on this case, the Second Circuit vacated their original decision about 924(c) and remanded to the district court.

Unfortunately for Savoca though, he hasn’t fully won, at least not yet. Even though the Supreme Court has made …

In United States v. Graham, No. 20-832 (2d Cir. Oct. 14. 2022) (Park, joined by Walker; Pérez concurring separately in the judgment), the defendant was convicted after trial of conspiracy to commit mail, wire, and bank fraud. On appeal, she argued, inter alia, that her lawyer rendered ineffective assistance of counsel per Missouri v. Frye by failing to timely convey a pre-trial plea offer.

The facts as to counsel’s inaction were not in dispute. The government argued, in response, that the defendant needed to raise her claim in a Section 2255 motion, and had not established prejudice.

The appeal proceeded to oral argument where, it turns out, the Court had some questions about something else: waiver. More specifically, whether Graham had waived her ineffectiveness claim. Supplemental briefing was ordered.

Ultimately, the majority affirmed the conviction on the ground of . . . you guessed it . . . …