Ed Sapone’s DECISIONS OF THE WEEK – April-11-2019

by | Apr 11, 2019 | Ed Sapone’s Decisions of the Week

A short docket in both the Federal and State appellate courts this week, with only a handful of decisions and just one reversal in the Second Circuit, in Thompson, and one in the Third Department, in Montague.
Second Circuit
On Wednesday, in United States v. Thompson, the Circuit vacated the 60-month sentence imposed upon defendant by Judge Castel, for cyberstalking and making hoax threats, finding that the court erroneously imposed a two-level sentencing enhancement for an offense involving the violation of an order of protection, because defendant had not been served the order of protection as required by NY law.
Defendant pleaded guilty to cyberstalking, conveying false information and making hoax threats. He had, among other things, sent harassing text messages to his ex‐girlfriend, emailed her employer in an effort to have her fired and emailed bomb threats and anti‐Semitic messages in her name to various institutions.
At sentencing, the parties disagreed over whether defendant was subject to a two‐level enhancement where the “offense involved . . . the violation of a court protection order.” The disagreement stemmed from a temporary order of protection that a Brooklyn family court issued ex parte in response to a petition filed by defendant’s ex‐girlfriend. Although it was undisputed that defendant’s subsequent behavior would have violated the protective order, it was also undisputed that defendant was never “formally served” with the petition, orders, or corresponding summonses.
The district court ultimately applied a two‐point enhancement under guidelines § 2A6.2(b)(1)(A), because it found that, under New York law, defendant was “on notice of the issuance” and contents of the order. The two-point protective‐order enhancement resulted in an advisory Guidelines range of 37 to 46 months’ imprisonment. The district court upwardly departed and sentenced defendant to the maximum 60-month term.
The Circuit disagreed. Approximately one year after defendant’s sentencing, the United States Sentencing Commission enacted Amendment 805, which modified the provision to “respond[] to concerns that the term ‘court protection order’ had not been defined in
the [G]uidelines and should be clarified.” Because Amendment 805 is “merely a clarification of the Sentencing Commission’s prior intent . . . , rather than a change in substance,” defendant was entitled to the benefit of this revision on appeal.
Amendment 805 clarified that the enhancement applied only to a state court’s ex parte protective order if that order was issued: (1) by a court with personal jurisdiction over both the petitioner and the respondent, as determined by the law of the issuing state; (2) by a court with jurisdiction over the subject matter, as determined by the law of the issuing state; (3) in compliance with federal procedural due process protections; and (4) in compliance with state time limits regarding notice and the opportunity to be heard.
Measured by this rule, the district court erred by asking only whether defendant was on notice of the issuance and contents of the order. Because the Brooklyn family court did not have personal jurisdiction over defendant, the two-point enhancement did not apply to the purported violation of the order. Because the district court applied the incorrect guidelines range, and it cannot be said that the court would have imposed the statutory maximum without the enhancement, a remand for resentencing was required.
The Circuit’s decision can be found here.
On Thursday, in United States v. Hendricks, the Circuit affirmed the 360-month NDNY sentence imposed for defendant’s convictions for credit union robbery, and using a firearm during a crime of violence, rejecting defendant’s claim, among others, that his conviction for using a firearm during a crime of violence was invalid because federal credit union robbery does not qualify as a “crime of violence” for the purposes of § 924(c).
To determine whether a crime is a “crime of violence” under § 924(c)(3)(A), the categorical approach applies. Under it, a court evaluates whether “the minimum criminal conduct necessary for conviction under a particular statute” necessarily involves violence. The focus is only on the elements of the offense and not the particular facts of the underlying crime.
The Circuit found that the elements of credit union robbery necessarily involve physical force. The credit union robbery statute is divisible because it contains two separate paragraphs that “delineate[] two methods of committing” credit union robbery. Because there was no dispute, in this case, that defendant was charged with, and convicted of, the first method of committing credit union robbery—namely, “by force and violence, or by intimidation,” the question was whether robbery “by force and violence, or by intimidation” categorically constitutes a “crime of violence.” The Circuit concluded that it does, because even robbery by intimidation is a crime of violence.
The Circuit also summarily rejected defendant’s claims that the district court abused its discretion and denied him a fair trial by (1) excluding a photograph of the individual defendant claimed actually robbed the credit union; (2) admitting testimony of victim witnesses regarding the robbery’s impact on them in the aftermath of the crime; and that
the district court had (3) erroneously sentenced him as a career offender under the residual clause of the guidelines.
The Circuit’s decision can be found here
On Monday, in United States v. Sadler & Brown, in a summary order, the Circuit affirmed defendants’ EDNY convictions before Judge Donnelly for conspiracy to distribute controlled substances as to both defendants and an additional conviction for defendant Brown for aggravated identity theft, and the sentences imposed thereon, granting defendant Sadler’s appellate counsel’s motion for Anders relief, and rejecting defendant Sadler’s appellate claim that his prior convictions did not give rise to career offender status.
Brown argued that his prior convictions did not make him a career offender under U.S.S.G. § 4B1.1 and that the district court thus improperly calculated his guidelines range, an argument which he did not raise in the district court. Brown’s opening brief argued that his prior assault conviction is not a “crime of violence” under the guidelines while his pro se reply brief raised the new argument that his prior narcotics conviction is not a “controlled substance offense.”
The Circuit disagreed with both contentions. First, Brown was convicted under NY Penal Law § 120.05(2). The Circuit had previously held that NY’s crime of assault in the second degree categorically constitutes a “crime of violence.” United States v. Walker, 442 F.3d 787, 788–89 (2d Cir. 2006). As for the narcotics conviction, since it involved the sale of a narcotic drug under NY Penal Law § 220.31, it was a controlled substance offense because every narcotic drug found on NY’s list correlated with a prohibited substance in the Federal CSA schedules.
The Circuit’s decision can be found here.
On Tuesday, in United States v. Lowery, in a summary order, the Circuit affirmed defendant’s EDNY conviction for Hobbs Act robbery, conspiracy to interfere with commerce robbery, and brandishing a firearm during a crime of violence before Judge Spatt, rejecting defendant’s contention that the trial evidence was insufficient to show that the robbery affected interstate commerce.
Defendant argued that the evidence of an effect on interstate commerce was insufficient because the victim’s testimony established only a “present tense” interstate commerce effect, and that the two-year timeline between the crime and the testimony was “too attenuated” for the jury to infer interstate effects based on that testimony.
The Circuit found that the government met its low sufficiency bar. The victim testified that some of the jewelry sold in his jewelry store was purchased in California, that some of his gold came from Italy, and that two bags of gold were among the items stolen. The Circuit found that, based on this testimony as well as common knowledge about the
basic facts of the gold market, the jury could infer that some of the stolen items traveled in interstate commerce.
The Circuit’s decision can be found here.
Appellate Division, Third Department
On Thursday, in People v. Montague, AD3 set aside the 7-year Albany County sentence imposed on defendant for his criminal possession of a controlled substance in the third degree conviction, finding that defendant was improperly adjudicated a second felony offender because his prior conviction fell outside the 10-year lookback period, reversing County Court’s decision that had denied defendant’s CPL § 440.20 motion on those grounds.
When determining whether a prior felony constitutes a predicate felony conviction for purposes of being sentenced as a second felony offender, the “sentence [for the prior felony conviction] must have been imposed not more than [10] years before commission of the felony of which the defendant presently stands convicted.” Penal Law § 70.06 [1] [b] [iv]. A prior “sentence of conditional discharge . . . shall be deemed to be a sentence.”
Defendant was convicted of criminal sale of a controlled substance in the third degree, a felony, and sentenced on April 16, 2002, to a conditional discharge requiring him to attend a drug treatment program. After absconding from the drug treatment program and violating the conditions of his conditional discharge, defendant was resentenced on March 16, 2005 to a prison term of 1¼ to 4 years and, on December 30, 2005, released on parole supervision. In February 2014, defendant was indicted for several drug-related offenses, and, on March 25, 2015, defendant, in full satisfaction of the indictment, pleaded guilty to criminal possession of a controlled substance in the third degree. On May 20, 2015, defendant was sentenced, as a second felony offender, to an agreed-upon prison term of seven years, to be followed by three years of post-release supervision.
AD3 found that County Court erred in determining that the controlling date for the prior felony conviction was the March 2005 resentencing and not the April 2002 original sentence of a conditional discharge that was imposed with respect to that crime
AD3’s decision can be found here.

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