Ed Sapone’s DECISIONS OF THE WEEK -February 22, 2019

Ed Sapone’s DECISIONS OF THE WEEK -February 22, 2019

| Feb 22, 2019 | Ed Sapone’s Decisions of the Week

Last week was a busy week in the Second Circuit, the U.S. Supreme Court, and the New York Court of Appeals.

Second Circuit

On Friday (2/15), in United States v. Valente, the Circuit found that the sentence imposed upon defendant for various securities-fraud-related convictions by NDNY was procedurally unreasonable because it was based upon an incorrect criminal history finding, and the case was remanded for resentencing.

In 2015, defendant pleaded guilty to a three‐count information charging Securities Fraud, Mail Fraud, and Obstructing and Impeding the Internal Revenue Laws in violation of 26 U.S.C. § 7212(a). The NDNY sentenced defendant to 240 months on each of the first two counts, and 36 months on Count 3, all to run concurrently, and to three years of supervised release. NDNY also ordered defendant to pay approximately $8.2 million restitution.

On appeal, the Circuit remanded to NDNY to reconsider the assessment of certain criminal history points. In 2017, NDNY reconsidered its application of those points, applied them again, and resentenced Valente to the same terms of imprisonment and of supervised release. Over objection, NDNY also increased the restitution amount by approximately $400,000.

Defendant, a former registered investment broker, perpetrated various frauds on the clients of The ELIV Group, LLC (“ELIV”), an unregistered investment and consulting group that he owned and operated in Albany, New York. Defendant established ELIV in 2010 after he was barred in 2009 from associating with FINRA members, based on findings that he had made unauthorized trades for customers and provided false written account information to customers. To establish ELIV and open brokerage accounts on its behalf, defendant arranged for his wife to be its “straw owner.”

At resentencing following the Circuit’s first remand, NDNY found that defendant’s adjusted offense level under the guidelines was 34, that he fell within Criminal History Category IV, based on eight criminal history points, and that the guidelines imprisonment range was 210–262 months. Defendant’s criminal history includes multiple state convictions related

to driving while intoxicated, including two Driving While Ability Impaired (“DWAI”) infractions, a recidivist DWAI misdemeanor, a driving while intoxicated misdemeanor, and a misdemeanor for operating a motor vehicle without an ignition-interlock device.

On this appeal, defendant challenged, among other things, the assessment of one criminal history point for being a recidivist DWAI offender. Defendant had been given a sixty‐day sentence of imprisonment in state court for the latter conviction.

Guidelines section 4A1.1(b) assigns two points to prior convictions, which result in a prison sentence of at least 60 days. The notes to that section provide that, to qualify as a sentence of imprisonment, the defendant must actually have served a period of imprisonment on such sentence. If the defendant did not actually serve the sentence, then only a one-point enhancement is applied. NDNY had found that, because defendant had been sentenced to a term of more than 60 days, and would eventually have to serve that term, the enhancement applied.

The Circuit disagreed. Because, at the time of resentence, defendant had not then served the sentence, the one-point enhancement did not apply. The Circuit noted that the 5th, 8th, and 11th Circuits had reached a contrary conclusion, but concluded that the plain language of the statute supported its interpretation.

The Circuit also concluded that guidelines § 4A.1.1(c) allows that only four criminal history points may be added under that subsection, and the four point maximum had already been met in this case. Because defendant’s prior interlock-device conviction merited the addition of one point under § 4A1.1(c), and defendant had three other prior convictions for which the district court properly assigned three points under § 4A1.1(c), both of the criminal history points that NDNY assigned for defendant’s recidivist DWAI conviction should have been disallowed, and defendant’s criminal convictions should have resulted in only four criminal history points rather than six. Because defendant was convicted of the current offenses while under criminal sentences for two other convictions, two points are added under § 4A1.1(d), resulting in a criminal history score of six, rather than the eight that NDNY used.

Defendant was thus was in Criminal History Category III, rather than Category IV. His offense level was 34, and his correct guidelines range was therefore 188–235 months, rather than 210–262 months.

On the issue of restitution, the government had originally calculated that the total net loss for all investors was approximately $8.2 million. After defendant filed his notice of appeal for the original sentence, the government realized that it had made an error by offsetting the total loss to investors by the total net gain of some investors. This was an error, because those gains were not available to repay losses to other investors. The restitution amount should have been approximately $400,000 higher. The Circuit found that, although remands for resentencing are normally for limited and not de novo sentencing, an exception to this rule applied where resentencing was necessary to correct a clear legal error. Here, the Mandatory Victim Restitution Act required that defendant repay each victim the full amount of their losses. It was therefore appropriate, in the Circuit’s view, to amend the restitution order.

In a lengthy concurrence, Judge Lynch agreed with the result, but spoke at length about the advisory nature of the guidelines, and that they did not always capture a defendant’s “history and characteristics” relevant to sentence. Reading between the lines, although Judge Lynch cautioned that he was not “presum[ing]” to suggest precisely how much weight should be given to various factors at the re-resentencing, Judge Lynch appeared to suggest that an ultimate sentence equal to the original would be appropriate, even under the corrected criminal history calculation.

The Circuit’s decision can be found here.

On Wednesday (2/20), in Dhinsa v. Krueger, the Circuit vacated the judgment entered by SDNY Judge Edward R. Korman that denied defendant’s § 2255 habeas petition on the merits, finding that it should have been dismissed on jurisdictional grounds rather than denied on the merits.

Petitioner was sentenced to six concurrent life sentences for his role in a racketeering enterprise. His petition challenged only two of the multiple convictions that led to those sentences. Although the relief petitioner sought would not affect the length of his incarceration, he nonetheless had standing to bring the petition because of the $100 special assessment that attached to each conviction. Because a successful challenge to any of the convictions might lead to a vacatur of one or more special assessments, and the special assessment though “a small sum” was nevertheless “concrete,” it was an injury sufficient to establish standing.

Petitioner did not, however, have standing under the § 2255(e) “savings clause,” which is available only if “the remedy by motion is inadequate or ineffective to test the legality of his detention.” Petitioner challenged two convictions on counts of murdering a potential witness or informant. He claimed innocence in his petition under the Supreme Court’s decision in Fowler v. United States, 563 U.S. 668 (2011), decided after his conviction, which requires the government to show in a § 1512(a)(1)(C) prosecution that the murder victim was “reasonably likely” to have communicated with a federal official had he not been murdered.

The Circuit concluded that petitioner had failed to demonstrate his innocence under Fowler. His extensive racketeering enterprise represented a type of criminal activity that is commonly investigated and prosecuted by federal officials. A juror could have reasonably found that each of petitioner’s victims was “reasonably likely” to have communicated with federal officials. The Circuit concluded that Judge Korman was correct to conclude that petitioner had failed to meet the requirements of the § 2255(e) savings clause.

Because this was a jurisdictional defect, however, the Circuit found that the district court erred insofar as it entered a judgment denying the petition on the merits, rather than dismissing for lack of jurisdiction.

The Circuit’s decision can be found here.

On Friday (2/15), in United States v Pinhasov, in a summary order, the Circuit affirmed the sentence and restitution order imposed by SDNY Judge Katherine Forrest, rejecting defendant’s procedural and substantive reasonableness challenges to his sentence, and his claim that his lawyer rendered ineffective assistance of counsel for failing to adequately investigate the loss amount associated with defendant’s fraudulent scheme.

On the IAC claim, the Circuit found that defendant’s evidence in support of his claim was not reliable, particularly given his history of fraudulent conduct, including writing bad checks. According to the Circuit, several of the same checks that defendant produced to argue that he’d paid back his victims were cited by one of those victims as examples of bad checks defendant had written. Under the circumstances, a reasonable attorney could have concluded that investigation into the amount of loss would have been futile.

The Circuit’s decision can be found here.

In United States v. Pena, in a summary order, the Circuit remanded an amended a NDNY judgment sentencing defendant to 187 months of imprisonment, based upon a finding that defendant was a career offender. The Circuit concluded that the record was insufficient to assess whether that enhancement had been correctly assessed.

Defendant’s PSR listed three prior felony convictions in New York State court: (1) attempted robbery in the second degree; (2) robbery in the third degree; and (3) attempted assault in the second degree. There was no dispute that attempted second-degree robbery and third-degree robbery constitute “crimes of violence.” The question was whether these convictions can be counted separately under § 4A1.2(a)(2) for career offender enhancement.

Defendant had pleaded guilty to the attempted second-degree robbery and the third-degree robbery charges on October 25, 2005 and was given concurrent sentences. The PSR did not reflect a sentencing date for the attempted second-degree robbery offense. It did indicate April 6, 2006 as the date of sentencing for the third-degree robbery offense. The Government conceded that the record was insufficient to determine whether there was an intervening arrest between the offenses and, if not, whether the sentences were imposed on the same day. Therefore, the Circuit found that the record was insufficient to support the application of the career offender enhancement based solely on the attempted second-degree and third-degree robbery convictions. Because it was unclear whether the two robbery convictions could be counted separately, defendant’s career offender enhancement could stand only if his conviction for attempted second-degree assault in violation of New York Penal Law § 120.05 also qualified as a “crime of violence.” On this issue, the Circuit found the record insufficient, because it was unclear from the record whether defendant had pleaded guilty to a subsection of attempted second-degree assault that was a crime of violence. The Circuit, therefore, remanded to allow the government an opportunity to attempt to show that defendant’s prior assault conviction was a crime of violence and that the career offender enhancement should apply.

The Circuit’s decision can be found here.

In United States v. Colabatistto, in a summary order, the Circuit conditionally affirmed the WDNY judgment convicting defendant of murder, a firearms offense, and narcotics conspiracy, and sentencing him to life imprisonment. The Circuit rejected his challenges, among others, to the sufficiency of the evidence supporting his convictions, but remanded for clarification of whether the district judge permissibly imposed the life sentence in the exercise of its discretion or incorrectly believed that the sentence was mandatory.

The Circuit, therefore, conditionally affirmed the judgment and remanded to afford the District Judge an opportunity to clarify in a written order his understanding of his sentencing options. The Circuit directed that, if the judge believed that a life sentence was a mandatory requirement, he should resentence the defendant and exercise his discretion to impose an appropriate sentence, which may include life imprisonment.

The Circuit’s decision can be found here.

On Wednesday (2/20), in United States v. Avery, in a summary order, the Circuit affirmed the SDNY judgment (Chief Judge Colleen McMahon), convicting defendant of conspiracy to distribute, and possess with intent to distribute, oxycodone, but vacated the subsequent judgment convicting him of violating his supervised release in a prior case. The Circuit found that defendant had waived his right to appeal the oxycodone conviction and sentence, but that, with respect to the supervised release conviction, the court placed defendant in an excessively high criminal history category.

The government did not contest the criminal history error, but argued that the error did not affect defendant’s substantial rights, because the court thought its sentence was appropriate irrespective of the guidelines range. The Circuit disagreed with that nonsense, finding that it could not be sure that the court would have imposed the sentence irrespective of the guidelines range.

The Circuit’s decision can be found here.

In United States v. Colon-Flores, in a summary order, the Circuit affirmed the NDNY judgment convicting defendant’s narcotics distribution conviction and the sentence imposed, but declined to decide his ineffective assistance of counsel claim on direct appeal, suggesting that it might have merit and should be decided in a § 2255 motion.

The Circuit expressed concerns with defendant’s sentence. First, the district court concluded that the offense level was 27 and the guidelines range was 151 to 188 months. Because an offense level of 27 with a criminal history category of III carries a guidelines

range of 87 to 108 months, it appeared that the district court misstated either the total offense level or the guidelines range. Second, the Circuit was concerned that it was not apparent that defense counsel’s effort to clarify the sentence succeeded, for it was still not clear whether the court determined that the total offense level was 27 or 32. It was not apparent from the record whether defense counsel was satisfied or whether he had some reason for not pursuing the issue further. Third, it did not appear that defense counsel ever, in writing or orally, addressed whether the three-level downward departure proposed by the government was sufficient or whether a greater reduction was warranted under the circumstances.

Under these circumstances, the Circuit concluded that a fair question was presented as to whether defense counsel should have argued for a greater reduction. Because of the difficulties in resolving an IAC claim on direct appeal, the Circuit invited defendant to seek collateral review.

The Circuit’s decision can be found here.

On Thursday (2/21), in United States v. Brooks, in a summary order, the Circuit affirmed the defendant’s EDNY conviction for violating the terms of his supervised release (Chief Judge Dora Irrizary), finding that the district court had correctly found violations based upon, among other things, defendant’s South Carolina conviction for first-degree assault.

The Circuit’s decision can be found here.

In United States v. Coll, in a summary order, the Circuit affirmed a former Rikers Island correction officer defendant’s SDNY conviction and sentence before Judge Loretta A. Preska, for violating the civil rights of a pretrial detainee at Rikers Island. The Circuit rejected defendant’s claims, among others, that the evidence was insufficient to support the convictions, in particular the evidence that defendant’s repeated kicks to the victim’s head caused his death, and the propriety of the jury instructions relating to the issue of causation. The Circuit also found that the 360-month sentence imposed by the district court was neither procedurally of substantively unreasonable.

The Circuit’s decision can be found here.

United States Supreme Court

On Tuesday (2/19), in Moore v. Texas, the Supreme Court summarily reversed defendant’s death sentence, ruling for a second time that the Texas Court of Criminal Appeals applied the wrong standard when it evaluated whether death row inmate Bobby Moore was intellectually disabled.

The Supreme Court had ruled in 2017 that the Texas high court had used the wrong analysis when it found that Moore had not shown adaptive deficits necessary for proof of

intellectual disability. On remand, the Texas Court of Appeals conducted a new analysis but again found that Moore did not have a mental disability.

In a per curiam opinion, the Supreme Court found that the Texas appeals court’s new analysis was inconsistent with the Supreme Court’s prior opinion, stating that “the appeals court’s opinion, when taken as a whole and when read in the light both of our prior opinion and the trial court record, rests upon analysis too much of which too closely resembles what we previously found improper.”

The Supreme Court’s decision can be found here.

On Wednesday (2/20), in Timbs v. Indiana, the Supreme Court ruled that the Eighth Amendment’s ban on excessive fines applied to the states. Defendant Timbs’ Range Rover had been seized after he sold a modest sum of heroin from it to an undercover officer. Defendant challenged the forfeiture in state court, contending that because the SUV was worth four times more than the maximum fine that the state could impose, the forfeiture was grossly disproportionate to the gravity of the crime. The state court agreed, an intermediate state appeals court also agreed, but the Indiana Supreme Court reversed.

The Supreme Court unanimously reversed. In an opinion by Justice Ruth Bader Ginsburg, the court concluded that the “historical and logical case for concluding that” the ban on excessive fines applies to the states through the 14th Amendment—which bars states from depriving anyone “of life, liberty, or property, without due process of law”—was “overwhelming.”

The Supreme Court’s decision can be found here.

New York Court of Appeals

On Tuesday (2/19), in People v. Thomas, the Court of Appeals held that a resentence on a prior conviction—imposed after the original sentence is vacated as illegal—does not reset the date of sentencing for purposes of determining a defendant’s predicate felony status. The date on which sentence was first imposed upon a prior conviction—not the date of any subsequent resentencing on that same conviction—is the relevant date for purposes of determining when “[s]entence upon such prior conviction [was] imposed.” (See Penal Law § 70.06 [1] [b] [ii]). The distinction is a significant one because a conviction counts for recidivist sentencing purposes only if the date on which sentence was imposed on the prior offense precedes the date the instant offense was committed.

The Court’s decision can be found here.

On Thursday (2/21), in People v. Diaz, and People v. Cisse, the Court of Appeals held that phone calls placed by pretrial detainees to friends and family members from Rikers Island,

recorded by the New York City Department of Corrections, may be released to prosecutors or law enforcement, so long as detainees are notified by posted signs or otherwise that the calls are being monitored and recorded. The Court found that detainees, informed of the monitoring and recording of their calls, have no objectively reasonable constitutional expectation of privacy in the content of those calls. The Court also found that such recordings do not violate state and federal wiretapping laws.

The Court’s decision in Diaz can be found here, and Cisse, here.

Appellate Division, Second Department

Also on Thursday (2/21), in People v. Jeffery, the Second Department remanded defendant’s attempted second-degree robbery conviction to Kings County Supreme Court to consider defendant’s motion to withdraw his guilty plea, where counsel took a position adverse to his client on the initial application.

The defendant pleaded guilty to attempted robbery in the second degree. On the date scheduled for sentencing, defendant told Supreme Court that he wanted to “take this plea back,” briefly describing his reasons, including that his attorney had not consulted with him adequately. Defense counsel “disagree[d]” with the defendant’s assertions. The court then imposed sentence.

The Second Department found that defendant had not been afforded a reasonable opportunity to present his contentions regarding his application to withdraw his plea of guilty and, consequently, the sentencing court was not able to make an informed determination of that application. The Second Department also found that defendant’s right to counsel was adversely affected when his attorney took a position adverse to his, and new counsel should have been assigned to represent the defendant before his application to withdraw his plea was determined.

The Second Department’s decision can be found here.

On Wednesday (2/20), in People v. Terry, the Second Department vacated and dismissed defendant’s Suffolk County convictions for attempted kidnapping in the second degree, finding that defendant had not come “dangerously close” to committing the completed crime.

Defendant hired an attorney to represent him in a personal injury action, after defendant had suffered severe burns. A year later, the defendant agreed to settle the action, but soon regretted his decision and tried to convince the attorney to reopen the case. Several years later, defendant twice showed up, unannounced, at the attorney’s office, complaining that the settlement amount was insufficient. The attorney explained to the defendant that it would not be possible to reopen the case given that defendant had signed a release in exchange for the settlement payment. Defendant left the office angry and upset.

He also called the attorney two or three times, and sent him multiple letters to the same effect. One morning, defendant drove to the attorney’s office in Central Islip where he waited in the parking lot from approximately 8:30 a.m. until 9:30 a.m., eventually leaving. Later that day the police stopped the defendant’s car after they observed him making turns without signaling and exceeding the speed limit. The police discovered that the defendant had a Taser, with a working cartridge, as well as a 9 mm handgun in the rear pocket of the passenger seat. The police arrested the defendant for unlawful possession of the handgun and Taser. The police also found, among other things, duct tape, plastic gloves, two sets of handcuffs, a knife, pepper spray, and a black powder pistol.

Although the attorney was in his office all day, defendant made no attempts to contact him by phone or email. Neither the attorney nor his receptionist saw defendant that day.

The Second Department found the evidence insufficient to establish attempted kidnapping because defendant did not come dangerously near to committing the completed crime. While the People contended that the defendant was heading back to the attorney’s office, when he was stopped by police later that day with the weapons in his car, there was insufficient factual support for this theory, as defendant was stopped several miles from the attorney’s office.

After the conviction, as reported by the Long Island edition of Newsday, the trial judge (Fernando Camacho) commented that the defendant was “extremely dangerous.”

The Second Department’s decision can be found here.

Warm regards, Edward V. Sapone Sapone & Petrillo, LLP

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