Ed Sapone’s DECISIONS OF THE WEEK -February 6, 2019

Ed Sapone’s DECISIONS OF THE WEEK -February 6, 2019

| Feb 6, 2020 | Ed Sapone’s Decisions of the Week

The Circuit did not release any precedential opinions in criminal cases this week, and issued only a few summary orders, none of them granting our clients any affirmative relief.
Second Circuit
On Monday, in United States v. Nunez Garcia (An

The Circuit did not release any precedential opinions in criminal cases this week, and issued only a few summary orders, none of them granting our clients any affirmative relief.

Second Circuit

On Monday, in United States v. Nunez Garcia (Andy Frisch, Esq. for defendant on the appeal), in a summary order, the Circuit affirmed the November 2017 amended judgment of defendant’s 217-month sentence that had been imposed by former SDNY Judge Katherine Forrest. Defendant had been sentenced upon his conviction for conspiracy to distribute cocaine and a 924(c) discharge of a firearm in furtherance of that conspiracy. This followed a remand for re-sentencing in light of Alleyne v. United States, 570 U.S. 99 (2013), rejecting defendant’s procedural- and substantive-unreasonableness challenges.

In 2013, following a jury trial convicting defendant of: (1) conspiracy to distribute and possess with intent to distribute at least 280 grams of crack cocaine (21 U.S.C. 841(b)(1)(A)), and (2) use of a firearm in furtherance of that conspiracy (18 U.S.C 924(c)), Judge Thomas Griesa had sentenced defendant to the mandatory minimum of 120 months for the drug count, and an additional 120 months—which he believed to be the mandatory minimum based on his finding that defendant discharged the pistol—for the gun count. Judge Griesa explained that, while he had determined the applicable (advisory) Guidelines range to be life imprisonment, such a sentence would be unjust. By contrast, he had deemed the 240-month mandatory minimum “just” and “appropriate.”

Later in 2013, the Supreme Court held in Alleyne, 570 U.S. at 117, that any fact that increases the mandatory minimum of a sentence is an “element” that must be submitted to the jury. The Government then conceded error and consented to a remand for resentencing, with the mandatory minimum on the gun charge reduced to five years.

On remand, the case was transferred to Judge Forrest, who had again sentenced defendant to 10 years for each of the two charges to run consecutively (she could have given him five years on the gun charge), but with credit for 23 months served in state custody for relevant conduct.

Defendant’s principal argument on appeal was that the Government had waived any reliance on a 2012 prison discipline incident by not raising it at the time of the first sentencing. He relied on the Circuit’s holding in Quintieri, where it explained that “the law of the case ordinarily prohibits a party, upon resentencing or an appeal from that resentencing, from raising issues that he or she waived by not litigating them at the time of the initial sentencing.” United States v. Quintieri, 306 F.3d 1217, 1229 (2d Cir. 2002). The Circuit disagreed with defendant, because a judge “may justify an increased sentence by affirmatively identifying relevant conduct or events that occurred subsequent to the original sentencing proceeding.” United States v. Bryce, 287 F.3d 249, 257 (2d Cir. 2002). Although this event did not occur after the original sentencing, a witness came forward between the original and subsequent sentencing which “confirmed and verified” the incident.

The Circuit’s decision can be found here.

In United States v. Rodriguez, et al., in a summary order, the Circuit affirmed the SDNY convictions of five defendants before Judge John Keenan, which had been held, at defendants’ request, pending the release of the Circuit’s decisions in United States v. Hill and United States v. Barrett, relating to whether a Hobbs Act robbery (“HAR”) was a crime of violence.

The Circuit summarily rejected various challenges by defendants to their HAR convictions, including challenges to (1) the lack of specificity of the dates and locations of the crimes in the indictment; (2) an alleged variance between the proof at trial and the indictment for one robbery count that the indictment alleged occurred in November 2010, but the proof showed occurred only “sometime” in 2010; (3) alleged judicial vouching for cooperating witnesses; (4) preclusion of cross-examination of cooperators regarding their conversations with their counsel about the cooperation agreements; and (4) the District Court’s instruction to the jury that aiding and abetting liability under section 924(c) can arise from a finding that a defendant “was present at the scene during the commission of the crime of violence” and that the “defendant’s conduct at the scene facilitated or promoted the carrying of a gun and thereby aided and abetted the other person’s carrying of the firearm.”

The Circuit also rejected defendants’ contention that recent case law called into question whether a HAR constitutes a “crime of violence” for purposes of 18 U.S.C. § 924(c)(3). In United States v. Hill and United States v. Barrett, the defendants argued that substantive and conspiratorial HAR did not qualify as “crimes of violence” for purposes of section 924(c)(3) in light of the Supreme Court’s decision in Johnson v.

United States, 135 S. Ct. 2551 (2015) (invalidating the so-called residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), as unconstitutionally vague).

In Hill, however, the Circuit held that “Hobbs Act robbery is a crime of violence under 18 U.S.C. § 924(c)(3)(A).” 890 F.3d 51, 53 (2d Cir. 2018). In Barrett, the Circuit held that a Hobbs Act robbery conspiracy is also categorically a crime of violence under section 924(c)(3) because “the agreement element of conspiracy so heightens the likelihood that the violent objective will be achieved that the conspiracy itself can be held categorically to present a substantial risk of physical force.” 903 F.3d 166, 177 (2d Cir. 2018). The decisions in Hill and Barrett required rejection of defendants’ claims here.

The Circuit’s decision can be found here.

On Thursday, in United States v. Abdullaev, in a summary order, the Circuit affirmed defendant’s EDNY convictions before Judge Sterling Johnson, Jr., for conspiring to violate the International Emergency Economic Powers Act (“IEEPA”) and to commit wire fraud, and substantive IEEPA violations. The Circuit rejected defendant’s arguments that (1) there was insufficient evidence to support his convictions; (2) the Government failed to establish that venue was proper in the Eastern District of New York for the substantive IEEPA violations; and (3) the District Court’s venue instruction was erroneous.

Defendant was charged with “willfully” facilitating the export of controlled microelectronics to Russia. He claimed on appeal that “he was not aware that he might be doing something illegal,” in part because he was making a “paltry salary” and had “neither the time, nor responsibility, nor expertise” to determine whether the exports he facilitated required licenses.

The Circuit found the evidence sufficient, concluding, among other things, that defendant had substantial knowledge of regulatory schemes governing exports. Not only was defendant familiar with these regulations, the Circuit found, but he was also practiced in their evasion.

The Circuit’s decision can be found here.

Appellate Division, First Department

On Thursday, in People v. Cabrera, the First Department affirmed the order of Bronx County Supreme Court Justice Carter, that had vacated defendant’s conviction following a CPL § 440.10 hearing. AD1 concluded that counsel had provided affirmative misadvice about the immigration consequences of defendant’s 2006 guilty plea.

At the 440 hearing, the court credited evidence that established that the attorney affirmatively misrepresented the deportation consequences of the plea by telling defendant that he would not become deportable, and that he likely would be granted citizenship five years after he completed his sentence of probation if he had no further trouble with the law. Such “affirmative misrepresentation falls below an objective standard of reasonableness,” the First Department found.

The First Department’s decision can be found here.

Appellate Division, Second Department

On Wednesday, in People v. Akbar, the Second Department reversed defendant’s Queens County first-degree assault conviction, in the interest of justice, holding that the court had inadequately conveyed to the jury that, should it find defendant not guilty of the attempted murder because defendant was justified, it should not consider any lesser counts. Last week, in our discussion of the First Department’s decision in People v. Barnar, we noted that that court had reversed more than a dozen violent felony convictions for this same reason. While not as prolific in its reversals on this ground, the Second Department has also repeatedly reversed for this error. See, e.g., People v. Braithwaite, 153 A.D.3d 929 (2d Dep’t 2017).

The Second Department’s decision can be found here.

In People v. El Hor, the Second Department ordered that defendant’s appeal of his second-degree assault conviction be remitted to Queens Supreme Court to afford him an opportunity to move to vacate his guilty plea because the court had failed to warn him of the possibility that he would be deported as a consequence of his guilty plea.

The Second Department’s decision can be found here.

Appellate Division, Fourth Department

Last Friday, in People v. Boyde, and People v. Jordan, the Fourth Department addressed two errors relating to courts’ failures to address the fact that guilty pleas to determinate sentences always involved a period of postrelease supervision, and courts

are required to advised defendants of that fact at the time of their guilty pleas.

In Boyde, defendant was previously convicted upon his plea of guilty of sexual abuse in the first degree, sexual abuse in the second degree, and endangering the welfare of a child, in Onondaga County Court. But on a prior appeal the Fourth Department reversed, vacated the plea, and remitted for further proceedings on the indictment. People v Boyde, 122 A.D.3d 1302 (4th Dept 2014). Upon remittal, defendant pleaded guilty to sexual abuse in the first degree in satisfaction of the remaining charges, and was sentenced to time served. On appeal from the re-plea, defendant contended that the sentence was illegal because it did not include postrelease supervision, and that he should be entitled to withdraw his plea, because he was not advised of it when he pleaded guilty. The Fourth Department agreed that, if the sentence was determinate, it would have required postrelease supervision. The fact that the sentence was illegally low would not moot the issue. But, if the sentence was definite, no postrelease supervision would have been required.

The Fourth Department remitted again for County Court to clarify whether the sentence imposed was definite or determinate.

In Jordan, defendant pleaded guilty in Niagara County Court to criminal possession of a controlled substance in the third degree. Because the court did not advise defendant that a period of postrelease supervision would be imposed, the Fourth Department vacated the conviction and plea.

The Fourth Department’s decision in Boyde can be found here, and in Jordan, here.

In People v. Tchiyuka, the Fourth Department vacated the sentenced imposed in Oneida County Court, following defendant’s guilty plea to second-degree robbery, because the plea was induced by a promise of jail-time credit that could not legally be fulfilled.

As part of his plea bargain, defendant was promised 203 days of jail time credit against the custodial term of his negotiated sentence. That promise could not legally be fulfilled because the 203 days at issue were already applied by operation of law against an undischarged sentence previously imposed upon defendant for an unrelated crime. Therefore, County Court had no power to promise defendant 203 days of jail time credit against the sentence for second-degree robbery.

Where a promised sentence cannot be imposed, the sentencing court may impose another lawful sentence that comports with the defendant’s legitimate expectations, or afford defendant an opportunity to withdraw his plea. The Fourth Department remitted to give County Court an opportunity to impose a sentence that comports with defendant’s legitimate expectations or to afford defendant an opportunity to withdraw his plea.

The Fourth Department’s decision can be found here.

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

dy Frisch, Esq. for defendant on the appeal), in a summary order, the Circuit affirmed the November 2017 amended judgment of defendant’s 217-month sentence that had been imposed by former SDNY Judge Katherine Forrest. Defendant had been sentenced upon his conviction for conspiracy to distribute cocaine and a 924(c) discharge of a firearm in furtherance of that conspiracy. This followed a remand for re-sentencing in light of Alleyne v. United States, 570 U.S. 99 (2013), rejecting defendant’s procedural- and substantive-unreasonableness challenges.
In 2013, following a jury trial convicting defendant of: (1) conspiracy to distribute and possess with intent to distribute at least 280 grams of crack cocaine (21 U.S.C. 841(b)(1)(A)), and (2) use of a firearm in furtherance of that conspiracy (18 U.S.C 924(c)), Judge Thomas Griesa had sentenced defendant to the mandatory minimum of 120 months for the drug count, and an additional 120 months—which he believed to be the mandatory minimum based on his finding that defendant discharged the pistol—for the gun count. Judge Griesa explained that, while he had determined the applicable (advisory) Guidelines range to be life imprisonment, such a sentence would be unjust. By contrast, he had deemed the 240-month mandatory minimum “just” and “appropriate.”
Later in 2013, the Supreme Court held in Alleyne, 570 U.S. at 117, that any fact that increases the mandatory minimum of a sentence is an “element” that must be submitted to the jury. The Government then conceded error and consented to a remand for resentencing, with the mandatory minimum on the gun charge reduced to five years.
On remand, the case was transferred to Judge Forrest, who had again sentenced defendant to 10 years for each of the two charges to run consecutively (she could have given him five years on the gun charge), but with credit for 23 months served in state custody for relevant conduct.
Defendant’s principal argument on appeal was that the Government had waived any reliance on a 2012 prison discipline incident by not raising it at the time of the first sentencing. He relied on the Circuit’s holding in Quintieri, where it explained that “the law of the case ordinarily prohibits a party, upon resentencing or an appeal from that resentencing, from raising issues that he or she waived by not litigating them at the time of the initial sentencing.” United States v. Quintieri, 306 F.3d 1217, 1229 (2d Cir. 2002). The Circuit disagreed with defendant, because a judge “may justify an increased sentence by affirmatively identifying relevant conduct or events that occurred subsequent to the original sentencing proceeding.” United States v. Bryce, 287 F.3d 249, 257 (2d Cir. 2002). Although this event did not occur after the original sentencing, a witness came forward between the original and subsequent sentencing which “confirmed and verified” the incident.
The Circuit’s decision can be found here.
In United States v. Rodriguez, et al., in a summary order, the Circuit affirmed the SDNY convictions of five defendants before Judge John Keenan, which had been held, at defendants’ request, pending the release of the Circuit’s decisions in United States v. Hill and United States v. Barrett, relating to whether a Hobbs Act robbery (“HAR”) was a crime of violence.
The Circuit summarily rejected various challenges by defendants to their HAR convictions, including challenges to (1) the lack of specificity of the dates and locations of the crimes in the indictment; (2) an alleged variance between the proof at trial and the indictment for one robbery count that the indictment alleged occurred in November 2010, but the proof showed occurred only “sometime” in 2010; (3) alleged judicial vouching for cooperating witnesses; (4) preclusion of cross-examination of cooperators regarding their conversations with their counsel about the cooperation agreements; and (4) the District Court’s instruction to the jury that aiding and abetting liability under section 924(c) can arise from a finding that a defendant “was present at the scene during the commission of the crime of violence” and that the “defendant’s conduct at the scene facilitated or promoted the carrying of a gun and thereby aided and abetted the other person’s carrying of the firearm.”
The Circuit also rejected defendants’ contention that recent case law called into question whether a HAR constitutes a “crime of violence” for purposes of 18 U.S.C. § 924(c)(3). In United States v. Hill and United States v. Barrett, the defendants argued that substantive and conspiratorial HAR did not qualify as “crimes of violence” for purposes of section 924(c)(3) in light of the Supreme Court’s decision in Johnson v.
United States, 135 S. Ct. 2551 (2015) (invalidating the so-called residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), as unconstitutionally vague).
In Hill, however, the Circuit held that “Hobbs Act robbery is a crime of violence under 18 U.S.C. § 924(c)(3)(A).” 890 F.3d 51, 53 (2d Cir. 2018). In Barrett, the Circuit held that a Hobbs Act robbery conspiracy is also categorically a crime of violence under section 924(c)(3) because “the agreement element of conspiracy so heightens the likelihood that the violent objective will be achieved that the conspiracy itself can be held categorically to present a substantial risk of physical force.” 903 F.3d 166, 177 (2d Cir. 2018). The decisions in Hill and Barrett required rejection of defendants’ claims here.
The Circuit’s decision can be found here.
On Thursday, in United States v. Abdullaev, in a summary order, the Circuit affirmed defendant’s EDNY convictions before Judge Sterling Johnson, Jr., for conspiring to violate the International Emergency Economic Powers Act (“IEEPA”) and to commit wire fraud, and substantive IEEPA violations. The Circuit rejected defendant’s arguments that (1) there was insufficient evidence to support his convictions; (2) the Government failed to establish that venue was proper in the Eastern District of New York for the substantive IEEPA violations; and (3) the District Court’s venue instruction was erroneous.
Defendant was charged with “willfully” facilitating the export of controlled microelectronics to Russia. He claimed on appeal that “he was not aware that he might be doing something illegal,” in part because he was making a “paltry salary” and had “neither the time, nor responsibility, nor expertise” to determine whether the exports he facilitated required licenses.
The Circuit found the evidence sufficient, concluding, among other things, that defendant had substantial knowledge of regulatory schemes governing exports. Not only was defendant familiar with these regulations, the Circuit found, but he was also practiced in their evasion.
The Circuit’s decision can be found here.
Appellate Division, First Department
On Thursday, in People v. Cabrera, the First Department affirmed the order of Bronx County Supreme Court Justice Carter, that had vacated defendant’s conviction following a CPL § 440.10 hearing. AD1 concluded that counsel had provided affirmative misadvice about the immigration consequences of defendant’s 2006 guilty plea.
At the 440 hearing, the court credited evidence that established that the attorney affirmatively misrepresented the deportation consequences of the plea by telling defendant that he would not become deportable, and that he likely would be granted citizenship five years after he completed his sentence of probation if he had no further trouble with the law. Such “affirmative misrepresentation falls below an objective standard of reasonableness,” the First Department found.
The First Department’s decision can be found here.
Appellate Division, Second Department
On Wednesday, in People v. Akbar, the Second Department reversed defendant’s Queens County first-degree assault conviction, in the interest of justice, holding that the court had inadequately conveyed to the jury that, should it find defendant not guilty of the attempted murder because defendant was justified, it should not consider any lesser counts. Last week, in our discussion of the First Department’s decision in People v. Barnar, we noted that that court had reversed more than a dozen violent felony convictions for this same reason. While not as prolific in its reversals on this ground, the Second Department has also repeatedly reversed for this error. See, e.g., People v. Braithwaite, 153 A.D.3d 929 (2d Dep’t 2017).
The Second Department’s decision can be found here.
In People v. El Hor, the Second Department ordered that defendant’s appeal of his second-degree assault conviction be remitted to Queens Supreme Court to afford him an opportunity to move to vacate his guilty plea because the court had failed to warn him of the possibility that he would be deported as a consequence of his guilty plea.
The Second Department’s decision can be found here.
Appellate Division, Fourth Department
Last Friday, in People v. Boyde, and People v. Jordan, the Fourth Department addressed two errors relating to courts’ failures to address the fact that guilty pleas to determinate sentences always involved a period of postrelease supervision, and courts
are required to advised defendants of that fact at the time of their guilty pleas.
In Boyde, defendant was previously convicted upon his plea of guilty of sexual abuse in the first degree, sexual abuse in the second degree, and endangering the welfare of a child, in Onondaga County Court. But on a prior appeal the Fourth Department reversed, vacated the plea, and remitted for further proceedings on the indictment. People v Boyde, 122 A.D.3d 1302 (4th Dept 2014). Upon remittal, defendant pleaded guilty to sexual abuse in the first degree in satisfaction of the remaining charges, and was sentenced to time served. On appeal from the re-plea, defendant contended that the sentence was illegal because it did not include postrelease supervision, and that he should be entitled to withdraw his plea, because he was not advised of it when he pleaded guilty. The Fourth Department agreed that, if the sentence was determinate, it would have required postrelease supervision. The fact that the sentence was illegally low would not moot the issue. But, if the sentence was definite, no postrelease supervision would have been required.
The Fourth Department remitted again for County Court to clarify whether the sentence imposed was definite or determinate.
In Jordan, defendant pleaded guilty in Niagara County Court to criminal possession of a controlled substance in the third degree. Because the court did not advise defendant that a period of postrelease supervision would be imposed, the Fourth Department vacated the conviction and plea.
The Fourth Department’s decision in Boyde can be found here, and in Jordan, here.
In People v. Tchiyuka, the Fourth Department vacated the sentenced imposed in Oneida County Court, following defendant’s guilty plea to second-degree robbery, because the plea was induced by a promise of jail-time credit that could not legally be fulfilled.
As part of his plea bargain, defendant was promised 203 days of jail time credit against the custodial term of his negotiated sentence. That promise could not legally be fulfilled because the 203 days at issue were already applied by operation of law against an undischarged sentence previously imposed upon defendant for an unrelated crime. Therefore, County Court had no power to promise defendant 203 days of jail time credit against the sentence for second-degree robbery.
Where a promised sentence cannot be imposed, the sentencing court may impose another lawful sentence that comports with the defendant’s legitimate expectations, or afford defendant an opportunity to withdraw his plea. The Fourth Department remitted to give County Court an opportunity to impose a sentence that comports with defendant’s legitimate expectations or to afford defendant an opportunity to withdraw his plea.
The Fourth Department’s decision can be found here.
Warm regards, Edward V. Sapone Sapone & Petrillo

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