Ed Sapone’s DECISIONS OF THE WEEK -August 23, 2019

Ed Sapone’s DECISIONS OF THE WEEK -August 23, 2019

| Aug 23, 2019 | Ed Sapone’s Decisions of the Week

This was an unexpectedly busy summer week. The Second Circuit remanded two cases for resentencing (Brown and Parkins), and, for the third time this year, the Circuit granted a habeas petition challenging a New York State murder conviction (Scrimo; the other two were Fernandez v. Artuz, 916 F.3d 215 (2019) and Orlando v. Nassau County District Attorney’s Office, 915 F.3d 113 (2019)).

The Fourth Department reversed the denial of two CPL 440 motions, finding that hearings were necessary to resolve defendants’ ineffectiveness challenges. There were no reversals in the three other departments.

Second Circuit

On Friday, in United States v. Brown, the Circuit remanded for resentencing the aggregate 39-year sentence imposed by SDNY Judge Nelson S. Roman for firearms and robbery offenses. The Circuit found that Dean v. United States, 137 S. Ct. 1170 (2017), abrogated the Circuit’s previous decision in United States v. Chavez, 549 F.3d 119 (2d Cir. 2008), and permits sentencing judges to consider the severity of mandatory consecutive minimum sentences required by 18 U.S.C. § 924(c) in determining sentences for underlying predicate offenses. Because it was unclear whether the sentencing judge was aware of the discretion authorized by Dean, the Circuit remanded for resentencing.

By way of background, Defendant was convicted of the gunpoint robbery of a Rite‐Aid pharmacy and a ShopRite supermarket. He brandished a firearm at employees in both stores, tied their hands, and took money from the stores’ safes. A jury found defendant guilty of the two robbery offenses and the two firearms offenses.

At sentencing, defense counsel argued that, in view of the severity of the mandatory consecutive minimum sentences on the firearms counts, the court should impose lenient sentences on the robbery counts. He specifically suggested one day on each robbery count, which would have resulted in an aggregate sentence of 32 years and two days.

The PSR calculated an advisory Guidelines range of 70 to 87 months for the robbery offenses. The court imposed concurrent sentences of 84 months (7 years) on the two robbery counts and consecutive sentences of 7 and 25 years, respectively, on the two firearms counts. The aggregate sentence was 39 years. The court did not say whether it had considered the severity of the mandatory consecutive minimum firearms sentences in determining the sentences on the robbery counts.

In 2008, the Circuit had ruled in Chavez that a sentencing judge was not permitted to consider the severity of mandatory consecutive minimum sentences under section 924(c) in determining sentences on underlying predicate offenses. In 2017, the Supreme Court abrogated Chavez, ruling that the severity of mandatory sentences on underlying predicates may be considered. The Circuit interpreted Dean to mean that a sentencing judge, selecting a sentence for a predicate offense, was not prohibited from considering the severity of a mandatory consecutive minimum sentence, and has the discretion, but not the obligation, to consider such severity. Because defendant’s case was still pending on direct review, Dean applied.

Because it was unclear whether the court had recognized that it had the authority to consider the mandatory sentences when sentencing on the underlying predicates, the Circuit remanded for resentencing.

The Circuit’s decision can be found here, and a summary order affirming defendant’s conviction can be found here.

In United States v. Ryan, the Circuit affirmed defendant’s NDNY convictions for possession with intent to distribute heroin, and one 922(g) count of possession of a firearm by a convicted felon. The Circuit also affirmed the sentence. It concluded that it was appropriate for the court to apply a four-level Guidelines enhancement under § 2K2.1(b)(6)(B) to a defendant who sells a firearm and drugs to a buyer in a single transaction or to a buyer who the defendant has reason to believe is a drug dealer.

Defendant made three heroin sales to an individual who was a confidential government informant. A week later, defendant arranged for the CI to buy 10 bundles of heroin for $1,000, a Smith and Wesson AR‐15 rifle, and a Mossberg shotgun for $600. But, because defendant did not have the AR‐15 with him on the day of the sale, he figured he would be a nice guy and give the CI significantly more heroin for the same total price they had originally negotiated. In a final controlled buy later that month, defendant sold the CI approximately 19 grams of heroin packaged for resale in 99 bags.

At sentencing, the court relied on Guidelines § 2K2.1(b)(6)(B) to apply a four‐level enhancement to defendant’s sentence, which increased the top end of the guidelines range by 25 months.

Defendant argued on appeal that the enhancement did not apply to the sale of heroin and the shotgun because the gun was not used to help sell the heroin.

The Circuit disagreed. Section § 2K2.1(b)(6)(B), provides for a four‐point enhancement if the defendant “used or possessed any firearm or ammunition in connection with another felony offense” (the “in‐connection‐with” clause) or if the defendant “possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense” (the “reason‐to‐believe” clause). The guidelines commentary states that the enhancement applies if the firearm either facilitated “or had the potential of facilitating” another felony offense.

The Circuit found that the court could have justified the enhancement under either the “in‐connection‐with” or the “reason‐to‐believe” clause. The in‐connection‐with clause is satisfied if a firearm has the potential to “serve some purpose with respect” to a defendant’s “felonious conduct.” It applied here, because selling firearms and drugs in the same transaction will normally facilitate both the drug sale and future drug sales. That was enough to trigger the enhancement.

The reason-to-believe clause applied too. It applies when the evidence “is sufficient to support an inference that defendant had reason to believe the guns would be used in connection with other felonies.” When a defendant sells a firearm to a known drug dealer, in most if not all cases it is reasonable to infer that the defendant understood, or had “reason to believe,” that the firearm would be used in connection with another felony. That showing was made here based on the quantity of drugs defendant had previously sold the CI.

The Circuit’s decision can be found here, and a summary order affirming defendant’s convictions here.

On Monday, in United States v. Parkins, the Circuit vacated the condition of supervised release imposed by SDNY Judge Richard M. Berman requiring defendant to perform 300 hours of community service per year over his term of supervision for a total of 695 hours. The Circuit concluded that the condition was not reasonably related to any relevant sentencing factors, was inconsistent with the Guidelines, and was a greater deprivation of liberty than reasonably necessary.

Defendant was convicted for his role in two different fraud schemes, one involving staging car accidents to defraud insurers, and the other involving reporting his debit cards lost or stolen while co-conspirators used his account to deposit fraudulent checks and withdraw the funds. Defendant waived indictment and pleaded guilty to one count of conspiracy to commit bank fraud and one count of conspiracy to commit health care fraud. He was sentenced to time-served and a three‐year term of supervised release with a condition that he perform 300 hours of community service for each year of supervision.

Defendant’s prior appeal argued that 900 hours of community service over 3 years violated 18 U.S.C. § 3583(d) because: (1) it was not reasonably related to any of the applicable factors set out in 18 U.S.C. § 3553, (2) it involved a greater deprivation of liberty than reasonably necessary to afford adequate deterrence, and (3) it was inconsistent with Application Note 1 to Section 5F1.3 of the guidelines. The government conceded that the community service term set forth by the district court lacked an adequate non‐punitive explanation, and moved to vacate the condition.

The Circuit vacated the community service condition of supervised release and remanded, explaining that it was unable to determine whether the community service term was warranted in light of the relevant statutory factors and guideline policy statement.

At resentencing, the district court imposed the same supervised release condition, which, at that point, required an additional 575 hours of community service for the remaining 23 months of supervised release in addition to the 120 hours that the defendant had already completed for a total of 695 hours.

Section 5F1.3 of the Guidelines allows for the imposition of a condition of supervised release requiring community service. Application Note 1 to that section provides that community service generally should not be imposed in excess of 400 hours.

The Circuit found that the general 400-hour cap applied to the entire term of supervised release, and was not an annual cap. The Circuit also found that there was no reason to exceed that general cap here. There was nothing about defendant’s particular circumstances to warrant community service in excess of the cap.

The Circuit vacated the community service condition and remanded for resentencing.

The Circuit’s decision can be found here.

On Tuesday, in Scrimo v. Lee, the Circuit reversed EDNY Judge Ann Donnelly’s denial of defendant’s § 2254 habeas petition challenging the constitutionality of his Nassau County second-degree murder conviction. The Circuit found that Judge Donnelly’s exclusion of three defense witnesses violated defendant’s constitutional right to present a defense.

The petitioner was convicted by a jury of murdering Ruth Williams. Damning was the testimony of John Kane, the only person in the room with them when she was killed. Defendant petitioned for a writ of habeas corpus challenging his state court conviction for murder. He argued that he was deprived of the constitutional right to a meaningful opportunity to present a complete defense when the trial court excluded, as collateral, evidence relevant to establishing that the State’s main witness, Kane, was the murderer.

The Circuit found that Judge Donnelly’s exclusion of three witnesses was not consistent with NY State’s evidentiary rules. The Circuit further found that the testimony was not extrinsic evidence on a collateral matter.

Defendant argued that the witnesses’ testimony was not collateral because it was not being offered merely to attack Kane’s credibility, but to establish his relationship to the victim and that the relationship involved drug sales. Defendant’s defense was that Kane was a drug dealer who strangled the victim over a drug deal. The proposed testimony from the three witnesses related to Kane’s prior drug transactions: one of those transactions involved the victim; another ended with him choking his female customer.

The Circuit found that the witnesses’ testimony was the opposite of collateral: it went to the obvious and decisive question of whether Kane committed the murder rather than defendant. Because the Circuit found that the exclusion of the testimony was not harmless, it reversed the district court’s denial of the writ and remanded with an instruction to the district court to issue a writ of habeas corpus unless NYS takes concrete and substantial steps to retry defendant within 20 days.

The Circuit’s decision can be found here.

On Tuesday, in United States v. Naseer, in a summary order, the Circuit affirmed defendant’s EDNY conviction before Judge Raymond J. Dearie for conspiring to provide material support to a foreign terrorist organization (Al Qaeda), and conspiring to use a destructive device, and the sentence of 40 years of imprisonment. The Circuit rejected defendant’s contentions that the court: (1) failed to ensure adequately that his waiver of his Sixth Amendment right to counsel was knowing and intelligent; (2) erred by admitting evidence regarding terrorist activity in which defendant did not directly participate; and (3) procedurally erred by applying a four-level “aggravating role” enhancement pursuant to Guidelines § 3B1.1(a).

The Circuit’s summary order can be found here.

On Wednesday, in United States v. Alujayli, in a summary order, the Circuit affirmed defendant’s EDNY conviction before Chief Judge Dora L. Irizarry, for violating supervised release, which she’d been serving for a previous heroin-importation conviction. The Circuit rejected defendant’s contentions that (1) the court did not have the authority to impose a three-year supervised release term; and (2) three special conditions of supervised release—(a) an inpatient substance abuse treatment program for six months; (b) an outpatient substance abuse treatment program following completion of inpatient treatment; and (c) a mental health treatment program— to be “approved by the U.S. Probation Department,” were improper delegations of judicial authority.

The Circuit’s summary order can be found here.

In United States v. Nyenekor, in a summary order, the Circuit affirmed defendant’s SDNY convictions before Judge Cathy Seibel for three counts of distribution and possession with intent to distribute cocaine, and the 92-month prison sentence. The Circuit rejected defendant’s many pro se claims, including that: (1) his conviction violated double jeopardy; (2) he was denied his right to a speedy trial; (3) he was denied his Sixth Amendment right to represent himself; (4) the conviction was based on insufficient evidence; (5) the jury instructions were flawed; and (6) his sentence was procedurally unreasonable.

The Circuit’s summary order can be found here.

Appellate Division, Fourth Department

On Thursday, in People v. Howard, AD4 reversed the order of the Supreme Court, Erie County, that had denied defendant’s CPL 440.10 motion to vacate his second-degree murder conviction without a hearing. AD4 found that defendant’s contention that he received ineffective assistance of counsel based on defense counsel’s failure to investigate and secure the testimony of witnesses who would have corroborated the alibi evidence presented at trial by defendant and his mother could not be resolved without a hearing.

AD4’s decision can be found here.

In People v. Williams, AD4 reversed the order of the Supreme Court, Onondaga County, that denied defendant’s CPL 440.10 motion to vacate his second-degree murder conviction without a hearing. AD4 found that defendant’s contention that he received ineffective assistance of counsel based on counsel’s failure to file an alibi notice and adequately investigate and utilize unspecified exculpatory evidence could not be resolved without a hearing.

AD4’s decision can be found here.

Warm regards,

Edward V. Sapone

Sapone & Petrillo, LLP

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