On Behalf of | Feb 2, 2021 | Ed Sapone’s Decisions of the Week

While there were several interesting precedential opinions from the Circuit this week—RamosHoutar, & Gray—none of them granted relief to defendants.

In the state courts, on the other hand, there were a number of significant decisions from the Second and Fourth Departments resulting in relief to defendants. From AD2, Romualdo was a particularly brave decision: the court tossed a murder conviction and dismissed the indictment finding that defendant’s semen on the victim’s body was insufficient by itself to support the conviction (don’t be surprised if the dissenting judge grants leave to appeal to NYCA). In AD4, the suppression rulings in Martinez-Gonzalez and Fitts, and the weight-of-the-evidence dismissal in Miller are each worth reading.

Second Circuit

In United States v. Ramos, CA2 affirmed the 24-month sentence imposed by SDNY Judge Nicholas G. Garaufis, following defendant’s violation of thew terms of her supervised release. CA2 found that the district court correctly considered a recidivism enhancement to determine that the violation, which was for the commission of a state felony while on supervised release, involved an offense punishable by a term of imprisonment exceeding twenty years.

In 1993, defendant was arrested after arriving at JFK Airport having ingested balloons filled with 818 grams of heroin. Facing between five and 20 years’ imprisonment, she pleaded guilty pursuant to a cooperation agreement to importing heroin. Given her lengthy criminal history, the guidelines range was 151 to 188 months. Because of her cooperation, the court determined that a substantial downward departure was warranted, and sentenced defendant to only 36 months’ imprisonment, to be followed by a 10-year term of supervised release.

Following her release, in 1998, defendant was involved in the murder of a police officer in New York. She was ultimately convicted in New York State court of second-degree reckless manslaughter, a class-C felony. The maximum sentence for a class-C non-violent felony in NY is normally 15 years. But because of defendant’s lengthy criminal history, she was sentenced as a discretionary persistent felony offender to a sentence of 15 years to life.

More than twenty years later, in 2019, defendant was released from state prison and immediately transferred to federal custody, where she was presented on a violation of the terms of her supervised release stemming from the 1998 shooting. In connection with the federal violation, the Probation Department determined that defendant’s state offense constituted a “Grade A” violation under § 7B1.1(a)(1), and concluded that the applicable Guidelines range was 33 to 41 months of imprisonment. Because the original offense of conviction was a class C felony, the maximum allowable sentence for the violation was determined to be 24 months. Defendant admitted the violation, and the district court adopted Probation’s violation report without change, including its proposed Guidelines range, and sentenced defendant to the maximum permitted term – 24 months’ incarceration.

Defendant argued on appeal that the district court committed plain error by classifying her state crime as a Grade A violation, when it should have been deemed a Grade B violation, because it was not a crime of violence. The district court’s decision was driven by its determination that the offense was a “crime of violence” under § 7B1.1(a)(1)(A). But the Guidelines define an offense as a “crime of violence” only if it either “has as an element the use, attempted use, or threatened use of physical force against the person of another” or is, among other specifically enumerated crimes, including  “voluntary manslaughter.” § 4B1.2(a). Defendant argued that her conviction for reckless manslaughter was not “voluntary” manslaughter.

The government argued that, even if defendant was right that reckless manslaughter is not voluntary manslaughter, the Grade A classification was appropriate because, even assuming defendant’s argument on appeal was correct, the state offense that constituted the violation was “punishable by a term of imprisonment exceeding twenty years.” § 7B1.1(a)(1)(B). After all, defendant was sentenced up to life in prison, and in fact served 22 years for her offense. The government also argued that any error was harmless because correcting the error would result in no change to the Guidelines offense level and sentencing range.

Ultimately, the question of whether defendant’s manslaughter conviction was a grade A or B violation turned on whether the court could take into account recidivism enhancements, which raised defendant’s underlying state sentence from a 15-year maximum to a life maximum. Agreeing with the 4th, 6th, 7th, 10th, & 11th Circuits, CA2 held that a recidivism enhancement is fair game for a sentencing court to consider when assessing the maximum potential penalty for an offense constituting a violation of supervised release. The Sentencing Commission’s commentary indicates that a court should “consider all conduct that affects the maximum penalties for a supervised release violation,” not just “the ‘basic’ penalty for a given offense.”

CA2’s decision can be found here.

In United States v. Houtar, CA2 affirmed defendant’s EDNY conviction for international parental kidnapping and passport fraud, and the 42-month prison sentence imposed by EDNY Judge LaShann DeArcy Hall, rejecting defendant’s contentions that the International Parental Kidnapping Crime Act (IPKCA) was unconstitutionally vague as applied to him, and that the Guidelines enhancements for substantial interference with the administration of justice and for fraudulent use of a United States passport were improperly applied.

Defendant was married in Yemen and came to the United States with his wife, where they had two daughters. A few years later, they returned to Yemen as a family. After a Yemeni divorce (and remarriage by the wife), they separately returned to the United States, leaving the children with his family in Yemen. Defendant’s ex-wife sought custody, and in September 2016, obtained visitation rights from the Kings County Family Court, which ordered defendant to bring their daughters back for an extended visit with their mother. Defendant defied that order. He fled the United States, rejoined his family in Yemen, and prevented his ex-wife from seeing her daughters for the next three years. About six months after absconding, defendant tried to replace his US passport, which he had surrendered to the Family Court. He gave its number and issuance date to the embassy in Cairo, claiming the original had been stolen. The application evidently triggered an INTERPOL notice, and a year later, he was arrested in Cairo and returned to the US.

Defendant challenged the application of IPKCA to someone who retains children abroad without first abducting them—when the children had not been in the US for several years prior to their unlawful retention—as unconstitutionally vague. The Act applies if a child has “been in the United States” and was “remove[d]” or “retain[ed]” abroad with the intent to obstruct parental rights. 18 U.S.C. § 1204(a). Defendant argued that it was unforeseeable that he would be prosecuted under the IPKCA because his children were never abducted and because they had not been present in the United States for several years before the unlawful retention began.

To establish a violation of the IPKCA, the government must prove: (1) that the child had previously been in the United States; (2) that the defendant took the child from the United States to another country or kept the child from returning to the United States from another country; and (3) that the defendant acted with the intent to obstruct the lawful exercise of another person’s parental rights.

In defendant’s view, because the IPKCA fails to specify when or for how long a child must “ha[ve] been in the United States” for the statute to apply, he lacked notice that it applied to his daughters, both of whom were born in the United States but, by the time the unlawful retention began, had been outside the country for several years without ever having been abducted by anyone.

CA2 disagreed. Defendant’s vagueness challenge failed because the IPKCA gave him sufficient notice that his conduct was proscribed. The statutory text draws no distinction between a child who was in the United States immediately preceding the unlawful retention, and a child who was not. Both children are covered by the statute. A person of ordinary intelligence who reads the IPKCA’s broad but unambiguous language would have sufficient notice that the statute applied here, since both of defendant’s children had “been in the United States” for significant periods of time.

CA2 also rejected defendant’s sentence challenges. The district court properly applied a three-level sentencing enhancement for “substantial interference with the administration of justice” pursuant to § 2J1.2(b)(2). Defendant argued that the district court imposed the enhancement because he defied the Family Court’s visitation order and retained his daughters in Yemen, conduct that is identical to the conduct underlying the IPKCA charges. According to defendant, he was being punished twice for the same acts. CA2 disagreed. The substantial-interference enhancement was imposed for the additional reason of his flight from Brooklyn to Yemen after the visitation order issued, in defiance of the Family Court’s order to remain within its jurisdiction.

Defendant also challenged the applicability of § 2L2.2(b)(3), which provides for a four-level enhancement if the defendant “fraudulently obtained or used [] a United States passport” in connection with an underlying offense. Defendant argued that the plain meaning of the word “use” is to “take, hold, or deploy (something) as a means of accomplishing a purpose or achieving a result.” He reasoned that because he did not physically present his old passport when applying for a replacement, he did not “use” it. CA2 disagreed. The Guidelines commentary construes the word “use” broadly and applies the enhancement in cases involving “the attempted renewal of previously issued passports.” In defendant’s fraudulent application to replace his passport, he “deployed” or “used” his old one by giving its number and its issuance date–just as one “uses” someone else’s credit card by inputting its number and expiration date to make a fraudulent purchase over the Internet.

CA2’s decision can be found here.

In United States v. Gray, CA2 affirmed the order of EDNY Judge Brian Cogan denying defendant’s § 2255 petition. CA2 held that the crime of assaulting a federal officer under § 111(b) is a crime of violence within the meaning of  § 924(c)(3)(A).

Defendant pleaded guilty in 2012 to assaulting a federal officer, in violation of §§ 111(a)(1) and (b), and to using a firearm during that assault, in violation of § 924(c). He later filed a motion under § 2255 to vacate his § 924(c) conviction on the ground that it lacked a legal predicate because § 111 does not qualify as a “crime of violence.”

The district court denied the motion, and CA2 affirmed. Section 924(c) imposes heightened penalties on “any person who, during and in relation to any crime of violence[,] . . . uses or carries a firearm.” § 924(c)(1)(A). The statute defines a “crime of violence” as a felony that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” The term “use” means the “active employment” of physical force. “Physical force” means “violent force—that is, force capable of causing physical pain or injury to another person.” Johnson v. United States, 559 U.S. 133, 140 (2010).

Courts employ the “categorical” approach to determine whether an offense is a crime of violence. Under the categorical approach, courts compare the elements of the offense (here, § 111) to the statutory definition of “crime of violence” (here, § 924(c)), without regard to the particular facts of the defendant’s offense conduct. If the statute of offense is “divisible” — i.e., it defines multiple separate crimes—courts apply the “modified categorical” approach and look at “a limited class of documents” from the record of conviction to “determine what crime, with what elements, a defendant was convicted of.”

CA2 found that § 111 is divisible. Applying the modified categorical approach, CA2 agreed with the First Circuit, among others, that “[a] defendant who acts forcibly using a deadly or dangerous weapon under § 111(b) must have used force by making physical contact with the federal employee, or at least threatened the employee, with an object that, as used, is capable of causing great bodily harm.” United States v. Taylor, 848 F.3d 476, 492 (1st Cir. 2017). This suffices under Johnson because it constitutes “force capable of causing physical pain or injury to another person.” Defendant’s “use” of a dangerous weapon in the course of a § 111(b) assault or battery constituted the “use, attempted use, or threatened use of physical force against the person . . . of another” under § 924(c)(3)(A).

CA2’s decision can be found here.

In United States v Conde-Falon, in a summary order, CA2 affirmed SDNY Judge Richard J. Sullivan’s order denying defendant’s motion pursuant to § 3582(c)(2) to reduce his 232-month sentence for conspiracy to distribute cocaine and heroin. CA2 agreed with the district court that defendant was not eligible to be resentenced because the applicable Guidelines range would not have been lower had the 2014 amended Guidelines been in place at the time defendant was originally sentenced. In 2014 the United States Sentencing Commission raised from 30,000 kilograms to 90,000 kilograms the minimum quantity of marijuana equivalent required to trigger a base offense level of 38 under which defendant had been sentenced. CA2 found that defendant had not shown that his Guidelines range would have been lower after this amendment, because he offered no reason to question the calculations in the Presentence Report which found seven drug seizures totaling 114,800 kilograms, which remained far above even the 90,000 kilogram threshold under the revised guidelines.

CA2’s decision can be found here.

Appellate Division, Second Department

In People v. Romualdo, AD2 reversed defendant’s Suffolk County second-degree murder conviction, and dismissed the indictment, finding that there was insufficient evidence to support the conviction. A single judge dissented.

The victim’s body was found dead in a wooded area. She’d been sexually assaulted and strangled within 12-24 hours before her body was found. Defendant was charged with murder after his DNA profile was matched to a single source partial profile generated from various swab samples taken as part of a sexual assault kit performed on the victim. The People presented no evidence placing the defendant at or near the scene of the crime, or linking him in any way to the victim, during the critical time frame in which the murder was believed to have occurred. Nor did the People offer any evidence showing that the sexual contact between the defendant and the victim occurred at or near the time of the murder. At most, the DNA evidence established, beyond a reasonable doubt, that the defendant had sexual contact with the victim at some unspecified time and place.

AD2 found the evidence insufficient to prove that defendant had intentionally caused the victim’s death.

AD2’s decision can be found here.

Appellate Division, Fourth Department

In People v. Martinez-Gonzalez, AD4 reversed defendant’s Onondaga County fifth-degree possession of a controlled substance conviction, finding that Supreme Court erroneously denied defendant’s motion to suppress drugs found following an attempted car stop.

An officer conducting surveillance of a home they believed to be a location for drug sales saw what he believed to be drug customers arrive and depart a back area of the home. The officer also saw defendant come to the front yard of the residence to smoke a cigarette then return to the back area. Defendant eventually left the residence as a passenger in a vehicle. The officer conveyed the vehicle’s plate number and direction of travel to another officer. That officer followed defendant and attempted to effect a stop of the vehicle by activating his patrol vehicle’s lights. The vehicle in which defendant was a passenger slowed and defendant jumped out and fled on foot into his own residence, where he was arrested soon after and found to be in possession of cocaine and heroin.

AD4 concluded that the information available to the detaining officer did not provide reasonable suspicion to justify the vehicle stop, and thus the court erred in refusing to suppress the tangible property seized from defendant.

AD4’s decision can be found here.

In People v. Fitts, AD4 reversed defendant’s Monroe County weapon possession conviction, finding that Supreme Court erred in refusing to suppress the gun recovered from defendant following a traffic stop.

At approximately 12:50 a.m., an officer assisting other officers with a traffic stop heard multiple gunshots coming from the north or northeast. He proceeded north, passing two intersecting streets and looked, but did not see, any pedestrians or vehicles on those streets. On the next intersecting street, he looked to his right and saw the taillights of a vehicle moving fairly slowly. He followed the vehicle and then stopped it, explaining that he wanted to conduct a traffic stop to investigate if a crime had been committed. He testified that less than a minute passed from the time he heard the shots until he saw the subject vehicle and that less than two minutes passed from the time he heard the shots until he stopped the vehicle. He later recovered a gun from defendant, who was a passenger in the car.

AD4 found that the police did not have reasonable suspicion to stop the car. The People established that the police stopped the vehicle less than two minutes after hearing the shots fired, the incident occurred in the early morning hours, the police did not see any pedestrian or vehicular traffic other than the subject vehicle after the shots were fired, and the vehicle was found in proximity to the location of the shots fired. But the police did not have a description of the vehicle involved or even whether there was a car involved, and the car was not fleeing from the area where shots were fired. The car was simply a vehicle that was in the general vicinity of the area where shots were heard. The police had a founded suspicion that criminal activity was afoot to justify a common-law right to inquire, but they did not have the required reasonable suspicion to justify the seizure of the vehicle.

AD4’s decision can be found here.

In People v. Lee, AD4 held in abeyance defendant’s appeal of his Cayuga County attempted first-degree assault conviction, following a guilty plea, finding that a hearing on defendant’s motion to withdraw his guilty plea was required because counsel took a position adverse to defendant when defendant filed a pro se motion to withdraw the plea.

When defendant filed the motion to withdraw his plea, defense counsel stated that he thought defendant’s request was “silly” and that it was his “opinion that not only was the plea informed, [defendant] made the correct decision” to take the plea. AD4 found that the court should not have determined the motion and request to withdraw the plea without first assigning a different attorney to represent defendant.

AD4’s decision can be found here.

In People v. Miller, AD4 reversed defendant’s Monroe County first-degree robbery conviction finding that it was against the weight of the evidence, and dismissed the indictment, finding that a single eyewitness identification was inadequate to support the conviction, where the identification may have resulted from a suggestive showup, and there was what AD4 described as “considerable objective evidence of defendant’s innocence.”

Defendant was found standing in a driveway half a mile from the crime scene only seven minutes after it occurred, wearing clothing different from the clothing worn by the gunman. He was not in possession of the fruits of the crime or of a firearm. There was no testimony that he was out of breath or that he displayed other signs of having recently run a distance. To the contrary, his boots were not even laced. The possibility that he changed clothes and hid the items in his companion’s residence across the street was questionable in the first instance given the timing of the events and was severely undercut by the fact that the police obtained permission to search the residence and did so without finding anything linking defendant to the crime. The police investigation established that a person other than defendant possessed the fruits of the robbery, particularly the victim’s cell phone, and that person’s act in fleeing from the police when the phone alarm sounded was indicative of consciousness of guilt.

AD4’s decision can be found here.