Most courts (and the government) have for a while acknowledged that kidnapping is not a crime of violence given that it can be accomplished through deception and thus without physical force. The Second Circuit has now acknowledged this too, holding in US v. Eldridge that NY kidnapping in aid of federal racketeering isn’t a 924(c) … Read more
Today, in United States v. Lewis, the Second Circuit strongly reaffirmed that the Circuit has no “categorical rule” about Fourth Amendment standing over shared spaces in multi-unit buildings. On the contrary, the Circuit noted that people who live in single-family homes should not have greater Fourth Amendment protections then people in multi-unit buildings. It counseled … Read more
In two direct appeals, the Second Circuit addressed follow-on issues arising from United States v. Taylor, 142 S. Ct. 2015 (2022) (holding that attempted Hobbs Act robbery is not an 18 U.S.C. § 924(c)(3)(A) crime of violence). In United States v. Collymore, No. 19-596 (2d Cir. March 7, 2023) (per curiam) (Sullivan, Park, Nardini), the … Read more
In United States v. Mendlowitz, No. 21-2049-cr (2d Cir. March 2, 2023) (summary order), the Second Circuit affirms the defendant’s wire fraud convictions, despite possible evidentiary errors and the district court’s refusal to ask about “potential antisemitic bias” during jury selection. On appeal following trial, the defendant challenged the district court’s exclusion of a proffered … Read more
In United States v. Vasquez-Drew, No. 20-2195-cr (2d Cir. March 2, 2023) (summary order), the Second Circuit ordered the defendant resentenced before a new district judge because certain remarks the original judge made at sentencing created a “risk that a reasonable observer … ‘might infer, however incorrectly’ that Vasquez’s nationality played a role in determining … Read more
In United States v. Gibson, 55 F.4th 153 (2d Cir. 2022), the Second Circuit held that the defendant’s 2002 New York state conviction for attempted third-degree criminal sale of a controlled substance was not a “controlled substance” offense under the career offender Sentencing Guideline because the New York drug schedules in 2002 included naloxegel, which … Read more
Today the Supreme Court granted certiorari in Pulsifer v. United States, No. 22-340, to clarify the First Step Act’s expansion of 18 U.S.C. § 3553(f)’s “safety valve.” Section 3553(f) permits a district court to sentence a defendant below the otherwise applicable statutory mandatory minimum for federal drug offenses if the defendant meets certain criteria. The 2018 … Read more
“It has long been settled in this Circuit” that “national origin and naturalized status” cannot be “the basis for determining” a defendant’s sentence. United States v. Arslanouk, 853 F. App’x 714, 720 (2d Cir. 2021) (quoting United States v. Kaba, 480 F.3d 152, 156 (2d Cir. 2007)). The Circuit is thus “compelled” to order resentencing … Read more
Perhaps you’ve wondered whether the Second Circuit would ever throw out a conviction because of inadequate voir dire in selecting the jury. Wonder no more. It’s finally happened. In United States v. Nieves, — F.4th —-, 2023 WL 405354 (2d Cir. Jan. 26, 2023), the defendant, a former gang member, challenged his conviction, following a jury trial, … Read more
Benjamin Hall v. United States, 2d Cir. No. 17-1513 (Jan. 19, 2023), decides a question most of us thought had been answered already – that United States v. Davis, 139 S. Ct. 2319 (2019), striking the residual clause of § 924(c) as unconstitutionally vague, rendered a substantive rule retroactive to cases on collateral review. As … Read more