Ed Sapone’s DECISIONS OF THE WEEK -January 31, 2019

Ed Sapone’s DECISIONS OF THE WEEK -January 31, 2019

| Jan 31, 2019 | Ed Sapone’s Decisions of the Week

The Circuit released two precedential opinions this week, vacating a standard “risk” condition of supervised release in United States v. Boles, and quickly following up on the Supreme Court’s decision in Stokeling v. United States. In United States v. Thrower, the Circuit found that New York’s offenses of third-degree robbery and attempted third-degree robbery qualified under the ACCA’s force clause as violent crimes. Finally, in a summary order, in United States v. Irrizary, the Circuit considered what appears to have been a truly botched sentencing by EDNY Judge William Kuntz, who is no doubt an intelligent guy (Harvard undergrad/Harvard Law), but who has been widely criticized by many in the criminal defense bar for his uncanny rulings since he was confirmed to the federal bench in 2011.

Second Circuit

On Friday (1/25), in United States v. Boles, the Circuit affirmed defendant’s WDNY convictions for possessing child pornography, and his 120-month sentence with 10 years’ supervised release. The Circuit rejected defendant’s contentions that (1) the court should have suppressed the computers seized in his home because the evidence supporting the search warrant was stale, and (2) the government failed to prove that the computers had been used in interstate commerce or to produce child pornography. The Circuit, nonetheless, vacated one special condition of supervised release.

Defendant moved to suppress evidence obtained from the computers seized from his home on the ground that the information in the search warrant’s supporting affidavit was stale when the warrant was issued. The Circuit did not reach the staleness issue, finding that, even assuming the warrant was not supported by probable cause (which it found was a close question), the good-faith exception applied. Agents executing the warrant were justified in relying on the issuing court’s determination that the warrant was valid. As the issuing court’s finding of probable cause was not facially insufficient, and the representations in the warrant were not intentionally false, reckless, or grossly negligent, the good-faith exception applied.

Defendant also argued that the government failed to present sufficient evidence that the images on his computer were ʺproducedʺ using materials transported by a means of interstate or foreign commerce. The Circuit found that the fact that the computer equipment had been manufactured

outside the U.S. was sufficient proof of interstate commerce. The Circuit also found that the government was not required to prove that the hardware was used to create the pornography in the first instance and that it was sufficient for the government to prove that the hardware was used to make, store or display copies of the pornographic images.

The Circuit agreed with defendant that the standard “risk” condition imposed by the court at sentencing gave the assigned probation officer too much discretion. The condition provided, “If the probation officer determines that you pose a risk to another person (including an organization), the probation officer may require you to notify the person about the risk and you must comply with that instruction. The probation officer may contact the person and confirm that you have notified the person about the risk.” Because the condition extended to warning employers of risk and gave the U.S. Probation Office unfettered discretion with respect to the notification requirement, it was too broad. The Circuit remanded to the district court for clarification.

The Circuit’s decision can be found here.

On Thursday (1/31), in United States v. Thrower, the Circuit reversed the decision of EDNY Judge Allyne Ross by which she granted defendant’s § 2255 petition. The Circuit found that the district court had incorrectly concluded that NY’s crimes of robbery and attempted robbery in the third degree do not qualify as ACCA predicate violent felony offenses.

The Government appealed from a 2017 judgment that reduced defendant’s sentence from 180 months to 120 months and ordered his immediate release because he’d served that time. The Government argued, and the Circuit agreed, that the district court erred in concluding that defendant’s prior convictions do not qualify as predicate “violent felonies” under ACCA, an enhancement that mandated a minimum sentence of 180 months.

During the 2008 sentencing, the district court had found that defendant qualified as an “armed career criminal” under ACCA, 18 U.S.C. § 924(e)(1), which mandated a minimum sentence of 15 years for anyone convicted of § 922(g)(1) who also had three prior “violent felony” convictions. Without specifying which ACCA clause(s)—the force clause, the enumerated offenses clause, or the residual clause—it relied upon in determining that the convictions qualified, the court found defendant subject to the ACCA enhancement and sentenced him to 180 months’ incarceration.

The Supreme Court subsequently struck down the ACCA’s residual clause as unconstitutionally vague in Johnson v. United States, 135 S.Ct. 2551 (2015). Defendant then challenged the ACCA enhancement in a § 2255 petition. The government did not contend that either third-degree robbery or attempted third-degree robbery satisfy the enumerated offenses clause, so the question was whether they satisfied the force clause.

The Circuit found that both crimes do. Quoting the Supreme Court’s recent decision in Stokeling v. United States, 139 S.Ct. 544 (2019), the Circuit stated that “the term ‘physical force’ in ACCA encompasses the degree of force necessary to commit common‐law robbery,” defined as “the amount of force necessary to overcome a victim’s resistance.” Under this definition, applying the

categorical approach, New York’s robbery, which requires “the use . . . or threatened use of physical force,” qualifies under the force clause.

The Circuit’s decision can be found here.

On Friday (1/25), in United States v. Herrera, in a summary order, the Circuit affirmed the conviction and sentence imposed by former chief judge of the SDNY, Judge Loretta Preska.

The Circuit rejected defendant’s argument that the court delegated its judicial authority to the Probation Office with its special condition of supervised release that he “participate in an outpatient substance abuse program approved by the United States Probation Office, which program may include testing to determine whether the defendant has reverted to using drugs or alcohol.” In recent decisions, the Circuit has vacated sentences when district courts have delegated judicial authority to the Probation Office to determine whether or not a special condition of supervised release is appropriate. Here, because the court made the decision that defendant participate in a program, and merely delegated the decision on which program defendant was required to participate in, the condition was not an inappropriate delegation.

The Circuit’s decision can be found here.

On Wednesday (1/30), in United States v. Baez, in a summary order, the Circuit affirmed the conviction and 105-month sentence imposed by SDNY Judge Gregory Woods, rejecting defendant’s claims that the court erroneously permitted the introduction of evidence showing his predisposition to commit the charged offenses.

Defendant was charged with knowingly possessing a TEC-9 semi-automatic firearm after having been convicted of a felony, and knowingly selling that TEC-9 to a convicted felon. Before trial, he indicated that he planned to raise an entrapment defense. To rebut this defense, the Government sought to introduce evidence showing defendant’s predisposition to commit the charged offenses.

If a defendant presents credible evidence of government inducement, then the prosecutor must show predisposition beyond a reasonable doubt. The Circuit found that, notwithstanding the limitations on use of prior crimes evidence to show propensity, the court here did not abuse its discretion when it allowed in statements from defendant about a desire to commit armed robberies, evidence of a sale of a revolver to another, and his prior conviction for possession of a shotgun. The prior acts were probative of predisposition, and, in any event, harmless.

The Circuit’s decision can be found here.

On Thursday (1/31), in United States v. Irizarry (McFarland), in a summary order, the Circuit vacated the 84-month sentence imposed by EDNY Judge William Kuntz for defendant’s convictions for conspiracy to distribute and possess with intent to distribute 100 grams or more

of heroin, and one count of firearms trafficking. The Circuit found that the court committed at least three procedural errors at sentencing.

First, as the government conceded, the record was unclear as to whether the court made the correct guidelines determination. The PSR noted that a downward (or lateral) departure from defendant’s criminal history category (“CHC”) VI might be warranted to avoid over-representing the seriousness of his prior convictions, many of which were minor motor-vehicle offenses, and that his CHC would be III if those motor-vehicle offenses were removed from consideration. But the PSR incorrectly stated that, in the event of a departure to criminal history category III, the resulting Guidelines range would be 7087 months, rather than the correct range of 5771 months. The district court’s post-sentencing opinion recognized the PSR’s error, but failed to state the applicable guidelines range. When counsel asked whether a departure to criminal history category III had been granted, the court did not answer, instead noting in its written opinion that the guidelines range would be 5163 months if it were to accept his request for a downward departure to category II. Because it was unclear whether the district court correctly calculated the guidelines range, remand for resentencing was required.

Second, the district court appeared to have accepted the PSR’s incorrect statement that § 924(a)(1)(D) required defendant’s sentence on the firearms charge to be imposed consecutively to the sentence for his narcotics charge. The district court’s statements at sentencing and in its written opinion suggested that it erroneously treated the guidelines range as applicable to the sentence for each count separately, rather than the “total punishment” imposed.

Third, the district court failed to rule on defendant’s motion for a downward departure pursuant to U.S.S.G. § 5K2.23 based on time he’d served in state custody.

The Circuit remanded with a direction to the district court to clearly state its guidelines-range findings, including whether defendant was entitled to a downward departure, and whether consecutive or concurrent sentences were appropriate.

The Circuit’s decision can be found here.

Appellate Division, First Department

On Thursday, in People v. Barnar, the First Department reversed defendant’s Bronx County first-degree manslaughter conviction, for which he was sentenced to 25 years’ imprisonment, in the interest of justice, finding that the sentencing judge (now-Appellate Division Justice Troy Webber), had erroneously failed to include a stop-deliberations instruction in its justification charge. Since its 2015 decision in People v. Velez, 131 A.D.3d 129, the First Department has reversed more than a dozen violent felony convictions, in the interest of justice, finding that the failure to instruct the jury that, if it acquits of one count finding that defendant was justified, it must stop deliberating and acquit on all lesser charges to which the justification defense applies.

The First Department’s decision can be found here.

Appellate Division, Second Department

On Wednesday, in People v. Keller, the Second Department, vacated defendant’s Queens County criminal possession of a firearm conviction (Modica, J.), finding that defendant was not presented with a legitimate explanation about the maximum sentence he would face if he were to reject the offered plea and were convicted after trial.

The defendant was charged with one count of criminal possession of a firearm and one count of criminal contempt in the second degree. Criminal possession of a firearm is a class E felony, and the longest sentence that a second felony offender can receive is an indeterminate term of imprisonment of 2 to 4 years. Criminal contempt in the second degree is a class A misdemeanor punishable by a definite sentence of imprisonment of up to one year. If convicted of both counts at trial, defendant’s corresponding sentences would run concurrently; the law provided no alternative.

Yet, defendant was told that he faced a sentence of up to 3 to 6 years if convicted after trial.

The Second Department found that this was an incorrect warning, and the threat of the higher sentence rendered defendant’s plea involuntary.

The Second Department’s decision can be found here.

Appellate Division, Third Department

On Thursday, in People v. Faulkner, the Third Department vacated the 10-year sentence imposed in Schenectady County following his conviction of two counts of third-degree rape and remanded for the assignment of new counsel to represent defendant on a motion to withdraw his guilty plea.

Defendant contended on appeal that his attorney had undermined his pro se motion to withdraw his guilty plea by taking a position adverse to his interests. Pursuant to a negotiated plea agreement, defendant pleaded guilty to two counts of rape in the third degree and waived his right to appeal in exchange for a three-year prison term. Defendant was released and directed to turn himself in the following week. When he failed to do so, a bench warrant was issued, and he was ultimately rearrested.

At a subsequent appearance, defendant made an oral pro se motion to withdraw his guilty plea. In response, defense counsel stated that he had advised defendant that there was no basis for the motion and that he believed defendant’s plea had been knowingly and voluntarily entered.

The court reserved decision on defendant’s motion, as well as the question of whether defendant should be assigned new counsel. Defendant appeared with the same counsel at the next appearance, and the court denied defendant’s pro se motion on the merits. In light of defendant’s

re-arrest prior to sentencing and several alleged violations of his release conditions, the People sought an enhanced sentence. With the assistance of the same counsel, defendant waived his right to an Outley hearing (see People v. Outley, 80 N.Y.2d 702 (1993))(holding that basis for arrest must be developed on record by court before it can impose an enhanced sentence), and consented to the court’s imposition of an enhanced, aggregate prison term of six years.

The Third Department found that “counsel’s repeated assertions that there was no basis for defendant’s motion and that his plea had been entered knowingly and voluntarily created a conflict of interest between him and defendant.” Under the circumstances, the court was obligated to assign new counsel before deciding the motion.

The Third Department’s decision can be found here.

Warm regards, E

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