No precedential opinions this week from the Circuit, but an unusual vacatur of an NDNY resentence in Jenkins, finding that the judge had not followed the Circuit’s instructions when it previously vacated a 225-month sentence.
Second Circuit
On Friday, in United States v. Jenkins, in a summary order, the Circuit, for the second time, vacated the NDNY sentence imposed upon defendant for possession and transportation of child pornography, finding that the 200-month sentence was procedurally unreasonable, because the district court erroneously presumed that defendant must have committed one or more prior sexual offenses, and factoring that into defendant’s risk of recidivism.
The Circuit had previously found, on defendant’s prior appeal, that the district court’s conclusion that defendant was a high risk to reoffend was wrong, because defendant had never spoken, much less approached or touched a child.
On remand for resentencing, the district court characterized as an “assumption” that defendant was a first‐time offender. The district court, however, was “unwilling to make such conclusions.” The judge cited studies showing that sexual offenses against children are underreported, and that the actual rate of offenders’ criminally sexually dangerous behavior is higher than the known rate. From these studies, the district court deduced that it was likely that defendant had committed a prior‐‐undetected‐‐sex offense, that he therefore had a high risk of recidivism, and that a lengthy sentence was justified.
The Circuit ruled that the district court’s assumption that defendant had committed a prior sex offense was error. Defendant’s offense of conviction was possession and transport of thumb drives and laptops containing child pornography, which he brought with him for his own purposes as he traveled to his parents’ vacation home in Canada. There was no evidence that defendant had committed any other sex offense.
The Circuit found that the district judge’s finding was procedurally erroneous, and remanded for resentencing before a different judge. Because the sentencing judge had candidly disagreed with
the Circuit’s prior remand, it could reasonably be expected that he’d “have substantial difficulty in putting out of . . . mind previously‐expressed views or findings determined to be erroneous.”
The Circuit’s decision can be found here.
On Wednesday, in United States v. Legrier, in a summary order, the Circuit affirmed defendant’s SDNY conviction for Felon in Possession of a Firearm, and the 120-month sentence imposed by Judge Ronnie Abrams, rejecting defendant’s claim that he received ineffective assistance of counsel because his attorney at sentencing: (1) failed to object on the ground that Second Circuit law at the time of his sentencing had invalidated the residual clause of § 4B1.2; and (2) failed to alert the district court that an amendment to the Guidelines that eliminated the residual clause in § 4B1.2 was going into effect five days after his sentencing.
Defendant argued that his counsel should have objected to the court’s classification of his state conviction as a crime of violence under the residual clause of § 4B1.2 because, at the time of his sentencing, the Circuit had declared the residual clause of § 4B1.2 unconstitutionally vague. The Circuit found that defendant suffered no prejudice from that error because, after his sentencing, the Supreme Court upheld the residual clause against a vagueness challenge, overturning the Circuit’s contrary decisions. A defendant suffers no cognizable Strickland prejudice if counsel fails to raise an argument that may have resulted in a lower prison sentence under then‐valid law that is later overruled.
Defendant also argued that his counsel was deficient for failing to alert the district court that a guidelines amendment that eliminated the residual clause of § 4B1.2 would be going into effect five days after his sentencing. That amendment, which was enacted, no longer contains the residual clause under which defendant’s guidelines were calculated.
The Circuit found that, because this argument does not rely on precedent that was later overturned, it could be viable, but it could not be raised on direct appeal because it required further fact finding. It therefore dismissed without prejudice to bring a § 2255 motion for ineffective assistance of counsel based on his lawyer’s failure to alert the court to the forthcoming amendment to the Guidelines.
The Circuit’s decision can be found here.
On Thursday, in United States v. Greenberg, in a summary order, the Circuit affirmed the SDNY judgment, convicting defendant of conspiracy to distribute narcotics and the 180-month prison sentence imposed by Judge Kenneth M. Karas. The Circuit rejected defendant’s contention that he was entitled to safety valve relief from the mandatory minimum term of incarceration. See18 USC § 3553(f).
At sentencing, the district court determined that defendant was ineligible for the safety valve because he possessed a firearm in connection with the offense of conviction. On appeal, defendant argued that the district court was wrong, because: (A) it incorrectly adopted a per se rule that constructive possession of a firearm in a drug stash house qualifies as possession “in connection with” a narcotics conspiracy; and (B) there was no proof or finding that the firearm at issue was possessed “in connection with” Greenberg’s offense of conviction.
The Circuit found that the district court did not commit clear error when it concluded that defendant was ineligible for safety-valve relief because defendant admitted he’d had constructive possession of a rifle at a stash house, which was “ground zero of the drug operation.” A categorical rule would be inconsistent with the principle that “the firearm must have some purpose or effect with respect to the drug trafficking crime; its presence or involvement cannot be the result of accident or coincidence.”
Nonetheless, the Circuit found that the district court did not adopt such a rule, because it indicated at sentencing that the analysis might have been different if the rifle had been stored in a less accessible place, such as the attic or garage of the stash house.
The Circuit’s decision can be found here.
In United States v. Diaz, in a summary order, the Circuit, on the government’s appeal, vacated the amended judgment of WDNY that had granted defendant’s § 2255 motion and resentenced defendant on the ground that the NY offense of third degree robbery was not a violent felony under the Armed Career Criminal Act. The Circuit’s recent decisions in United States v. Thrower, and United States v. Pereira-Gomez, had foreclosed such a result.
The Circuit’s decision can be found here.
In United States v Kupa, in a summary order, the Circuit affirmed the decision of EDNY Judge Edward R. Korman that had denied defendant’s pro se motion under § 3582(c)(2) to reduce his sentence for a narcotics conspiracy. The Circuit rejected defendant’s contention that the court should have reduced his sentence because it had been imposed on a guidelines range that was later lowered by the Sentencing Commission.
Amendment 782 amended the Drug Quantity Table in the Guidelines to reduce the offense levels associated with certain controlled substances crimes by two levels. Amendment 788 permits Amendment 782 to be applied retroactively.
The Circuit agreed with the district court that defendant’s guidelines range was unaffected by the amendment, because his original base offense level of 32 was reduced by two levels for playing a minor role in the offense. Had Amendment 782 been in effect at the time defendant was
sentenced, his resulting base offense level, 30, would have been too low to receive any reduction for minor role.
The Circuit’s decision can be found here.
In United States v. Lewis, the Circuit, in a lengthy summary order, affirmed defendant’s EDNY conviction before Judge Carol Bagley Amon. The Circuit found that defendant had illegally reentered the US after deportation following a conviction for an aggravated felony. The Circuit rejected defendant’s contention that he had lawfully entered because he had acquired citizenship from his father.
Acquired citizenship is automatically obtained from a parent at birth, in contrast to derivative citizenship, which is transmitted from parent to child after the child is born. Defendant, who was born to unmarried parents in Guyana, contended that he acquired citizenship from his father who was a US citizen. Guyanese law legitimated all children born there out of wedlock.
The district court found, and the Circuit agreed, that defendant had not established acquired citizenship under some very complicated rules holding, essentially, that paternity cannot be established by legitimation without a formal finding.
The Circuit’s decision can be found here.
Appellate Division, First Department
On Tuesday, in People v. Rodriguez, AD1 reversed defendant’s NY County conviction for failure to register as a sex offender, finding that the court erroneously denied defendant’s for-cause challenge to a prospective juror.
AD1 found that the challenged potential juror made a statement reflecting a state of mind likely to preclude the rendering of an impartial verdict, and the court did not elicit an unequivocal assurance that, in rendering a verdict based on the evidence, the panelist could set aside any bias. The potential juror expressly stated that he was “not sure” he could be impartial in a case involving a registered sex offender. His general statement about needing to hear the facts did not address his ability to overcome the specific bias he had expressed.
This is a helpful decision, as courts routinely allow such statements to sanitize prior juror statements that demonstrate their obvious bias.
AD1’s decision can be found here.
Appellate Division, Second Department
On Wednesday, in People v. Hill, AD2 reversed defendant’s Westchester County first-degree manslaughter conviction, finding that defendant’s guilty plea was tainted by a conflict of interest, because defendant’s attorney’s law office also represented, on unrelated charges, the prosecution’s principal witness.
Defendant was charged under a 2013 indictment with second-degree murder. He was later charged in a 2014 indictment with second-degree assault. Following a pretrial hearing on the 2013 indictment, the defendant’s counsel, who represented the defendant on both cases, learned that he had a conflict of interest with the defendant, as the attorney’s law office also represented, on unrelated charges, the prosecution’s principal witness in the 2013 indictment. The witness was expected to testify that he saw the defendant shoot and kill the unarmed victim. The County Court granted the attorney’s motion to be relieved as defense counsel in the case under the 2013 indictment, but the attorney remained as the defendant’s counsel on the 2014 indictment.
The defendant ultimately pleaded guilty to charges on both indictments.
AD2 found that defendant was denied his right to effective assistance of counsel when the attorney, who had been relieved as the defendant’s counsel on the 2013 indictment because of a conflict of interest with the prosecution’s principal witness, made a plea offer with respect to that indictment.
AD2 vacated the plea and remanded back to County Court.
Counsel should remain conscious that the failure to flag one’s own conflict of interest can lead not only to reversals but also to disciplinary action. See, e.g., Part 1200 Rules of Professional Conduct Rules 1.7 – 1.10.
AD2’s decision can be found here.
In People v. Nettles, AD2 remitted defendant’s Kings County firearm possession conviction back to Supreme Court for a Darden hearing, finding that the court had erroneously denied defendant’s motion to controvert without a hearing, where there was insufficient probable cause without information supplied by the confidential informant.
AD2 found that a detective’s on-the-scene observations during controlled drug buys fell short of probable cause without the information provided to him by a CI. Although the detective observed the CI enter and exit the building, the detective was unable to confirm that the CI had actually purchased the narcotics from the subject apartment.
For that reason, AD2 remitted back to Supreme Court, for an in camera hearing and inquiry in accordance with the guidelines set forth in Darden.
AD2’s decision can be found here.
In People v. Taylor, AD2 affirmed defendant’s Kings County first-degree criminal sex act conviction, finding that, although the Supreme Court had erroneously denied defendant’s motion to suppress his historical cell site location information (CSLI), which was first obtained by the police without a warrant, the error was harmless.
The defendant contended that the People violated his federal constitutional right against unreasonable searches and seizures by obtaining his CSLI without first obtaining a warrant. Even though the defendant did not object below, AD2 found his contention had merit and should be considered in light of the United States Supreme Court’s somewhat recent holding in Carpenter v United States, 138 S Ct 2206 (2018). AD2 found that the trial court’s order requiring release of the CSLI under the Stored Communications Act (18 USC § 2703[d]), which order made no express finding of probable cause, was not effectively a warrant supported by probable cause.
AD2 also agreed with defendant that the People improperly introduced evidence that he invoked his rights to remain silent and to counsel, even though defendant had not objected to the challenged testimony on this basis at trial.
AD2 ultimately found that neither error harmed defendant.
AD2’s decision can be found here.
Warm regards,
Edward V. Sapone
Sapone & Petrillo, LLP