DECISIONS OF THE WEEK ENDED MARCH 12, 2021

| Mar 17, 2021 | Ed Sapone’s Decisions of the Week

While the Second Circuit published many summary orders this week, there were no precedential decisions, and the summary orders dealt mainly with relatively mundane sentencing issues. If CA2’s decisions this week show anything, Vasquez and Moore demonstrate that, notwithstanding legislation and Guidelines amendments to ameliorate the harsh sentences historically imposed for controlled substance offenses, those reductions still result in extremely harsh sentences measured in decades rather than in years. In other words, we’re still talking football, not soccer, numbers.

Second Circuit

In United States v. Vasquez, in a summary order, CA2 dismissed defendant’s appeal from the order of EDNY Judge Raymond J. Dearie that reduced the aggregate 660-month sentence imposed in 1998 for narcotics, robbery, and firearms offenses by 68 months following Amendment 782 of the Guidelines. Recall that Amendment 782 reduces the base offense level for some narcotics convictions. Here, CA2 rejected defendant’s contention that, notwithstanding the reduction, CA2 should also grant him relief unrelated to Amendment 782.

Defendant did not challenge the district court’s decision to reduce his sentence by 68 months pursuant to Amendment 782. Instead, he raised on appeal two unrelated issues pertaining to his original sentence: (1) the district court’s treatment of the Guidelines as mandatory at his 1998 sentencing before they were rendered advisory in United States v. Booker, 543 U.S. 220 (2005); and (2) the district court’s refusal to consider, under Dean v. United States, 137 S. Ct. 1170 (2017), the severe effect of the consecutive mandatory minimum sentences of the firearm convictions under 18 U.S.C. § 924(c).

CA2 concluded that it did not have the power to review those claims. The only motion before the district court was one to reduce a sentence under 18 U.S.C. §3582(c)(2). Neither the district court nor the Circuit had the power to review procedural errors in the original sentencing.

CA2’s decision can be found here.

In United States v. Moore, in a summary order, CA2 vacated the order of EDNY Judge Nicholas G. Garaufis, that denied defendant’s motion for reconsideration of an earlier decision granting only a partial reduction of his sentence pursuant to §3582(c)(2), and defendant’s motion for a further sentence reduction under the First Step Act.

In 1993, a jury convicted defendant of one count of conspiracy to distribute crack cocaine, two counts of distribution of crack cocaine, two counts of possession of firearms with obliterated serial numbers, and one count of possession of firearms during the commission of the crack conspiracy in violation of §924(c)(1). The district court sentenced defendant to Life imprisonment on the drug conspiracy conviction, and a consecutive 60-month sentence on the § 924(c) firearm conviction.

In 2008, defendant moved for a sentence reduction pursuant to §3582(c)(2) and Guidelines Amendment 706, which had retroactively reduced the Guidelines range applicable to defendant’s offense conduct under the crack conspiracy count from a term of Life imprisonment to a range of 360 months to Life. The district court granted the motion and reduced defendant’s sentence on the crack conspiracy count to 360 months. The district court did not (and could not), reduce the consecutive 60-month sentence on the § 924(c) count, thus leaving defendant with a total sentence of 420 months of incarceration.

In 2014, defendant moved for another sentencing reduction pursuant to §3582(c)(2) and then-recently effective Guidelines Amendments 782 and 788, which further reduced the base offense levels applicable to crimes involving crack cocaine, lowering the Guidelines range for defendant’s offense conduct under the crack conspiracy count to 292 to 365 months. The district court granted the motion in part, reducing defendant’s sentence on the drug conspiracy charge to 324 months (thus, with the 60-month consecutive firearms sentence, a total sentence of 384 months). Judge Garaufis did not grant defendant’s request to reduce the drug conspiracy sentence even further.

Defendant sought reconsideration of that decision. At roughly the same time, Congress passed the First Step Act, which effectively lowered the mandatory minimum sentence applicable to defendant’s drug conspiracy conviction from 10 years to five years and lowered the applicable maximum sentence for that crime from Life imprisonment to 40 years. In addition to reconsideration of the original motion, defendant also moved under §404(b) of the First Step Act for a reduction in his sentence on the conspiracy count from 324 to 292 months. Judge Garaufis denied both motions. He quipped that an “overall term of imprisonment” of 324 months was “sufficient, but not greater than necessary” to promote the purposes of sentencing.

CA2 vacated Judge Garaufis’ decision, because the total sentence was 384 months, and not the 324 months he cited in his decision. Because it was unclear whether the court’s decision rested on this error, CA2 directed him to clarify his decision. If the district court did not base its denial of reconsideration and a further reduction of defendant’s sentence on this mistake, CA2 directed that the district court need not reevaluate the sentence. If the district court did mistake defendant’s overall term of imprisonment to be 324 months, CA2 directed it to reevaluate defendant’s motions and reconsider its prior ruling.

CA2’s decision can be found here.

In United States v. Gigliotti, in a summary order, CA2 affirmed defendants’ EDNY cocaine importation-, possession-, and distribution-conspiracy convictions, rejecting defendants’ contentions that Judge Raymond J. Dearie erroneously (1) found that defendants had used their peremptory challenges in violation of Batson, (2) failed to suppress evidence recovered during a search of their restaurant in coordination with the NY State Liquor Authority, (3) failed to exclude wiretap evidence collected by a foreign government, (4) retained a juror notwithstanding her statement that she needed to leave for a wedding by a specific time.

CA2 found that the district court did not abuse its discretion when it reseated two jurors for defendants’ alleged Batson violations. Judge Dearie found that the government had established a prima facie case of gender discrimination based on defense counsel’s use of all 10 of its peremptory strikes against men. The court then determined that defense counsel had offered nondiscriminatory reasons for challenging each juror, except for Juror No. 16. In relation to this juror, defense counsel had suggested that it made the strike based on “gut” after “discussion with [the] client.” That explanation was insufficient to rebut the prima facie showing of discriminatory intent in defense counsel’s strike. (Note to self: Never go with the my gut told me to strike that juror excuse.)

CA2 also approved the district court’s handling of Juror No. 3. At the third step of the burden-shifting framework, Judge Dearie found defense counsel’s explanations not credible when he suggested that the challenge was because the juror “went to verdict in Suffolk County,” “had some law enforcement background,” and had a “fairly pronounced Spanish accent.” The district court found this reasoning unpersuasive because, among other things, the record did not reflect that this juror had any law enforcement background or that he had served on a criminal jury.

CA2 found that, even assuming the warrantless restaurant search was unlawfully conducted with the NY State liquor authority under an unlawful pretext, suppression was not required because the search warrant later obtained by law enforcement was supported by independent sources, and the administrative search did not prompt the warrant application.

The evidence from an Italian wiretap was also lawfully admitted, CA2 found. Generally, foreign wiretap evidence is admissible when foreign officials, acting on their own to enforce foreign law, properly follow their own law in obtaining the evidence, even where the subject of the foreign search is an American citizen. In United States v. Maturo, 982 F.2d 57, 60 (2d Cir. 1992), the Circuit recognized two exceptions to this general rule: (1) where the conduct of foreign officials in acquiring the evidence is so extreme that it shocks the judicial conscience, and (2) where cooperation with foreign law enforcement officials implicates constitutional restrictions. This latter category applies generally in two situations: (a) where the conduct of foreign law enforcement officials rendered them agents of US law enforcement; and (b) where the cooperation between the US and foreign law enforcement agencies is designed to evade constitutional requirements. CA2 found no such circumstances here.

CA2 also found that the district court did not abuse its discretion when it declined to dismiss a juror who informed the court that she needed to leave for a wedding by a specific time. Judge Dearie decided not to dismiss the juror but instead called in the jury and instructed it that it was not to rush and that, if necessary, arrangements would be made to prevent the juror from missing her scheduled event. There was no evidence to suggest that the jury was rushed, and no juror raised any concern about what the jury was to do in the event that it could not complete deliberations before the juror in question’s departure.

CA2’s decision can be found here.

In United States v. Rivers, in a summary order, CA2 affirmed EDNY Judge William F. Kuntz’ denial of defendant’s application for bail pending trial or temporary pretrial release pursuant to §3142(i).

Defendant was arrested in August 2018 after being indicted for bank robbery. In April 2020, as the COVID-19 pandemic began to disrupt court operations, defendant sought pretrial release on the basis of his underlying medical conditions. The district court denied the motion after weighing the factors set forth in 18 U.S.C. §3142(g) and determining that there was no set of conditions sufficient to reasonably assure defendant’s appearance and the safety of the community. The district court also declined to temporarily release defendant, finding that he’d failed to document his asserted medical vulnerabilities.

In September 2020, as the pandemic continued, the district court delayed defendant’s trial from November 2020 to July 2021. In September 2020, defendant filed a motion for reconsideration of his bail motion. Judge Kuntz, again, determined that his earlier determination that defendant was a flight risk and a danger to the community remained unchanged. He, again, found no “compelling reason” for temporary release under Section 3142, explaining that he had concerns about releasing defendant given the violent nature of the instant offense and his extensive criminal background, and despite defendant’s “serious underlying medical conditions.”

For what it’s worth, this reasoning is consistent with my experience throughout the last year. It’s not always enough, especially in cases involving violence, that we persuasively make the case that our client suffers a serious medical condition. By way of example, last spring during oral argument on a bail application I expressed a grave concern to an SDNY judge: “Your Honor, as you know, we are in a hellish pandemic, and Mr [X] is HIV-positive. He’s stuck in a petri dish at the MCC. If he gets Covid, it’s likely to kill him. Please let him go home on a bracelet. I can’t have this guy die on my watch.” The judge didn’t miss a beat in assuring me: “Mr. Sapone, make no mistake about it. If your client dies, you didn’t kill him. I did.” The potential for future violence generally is more important than the potential for future death. Lesson learned.

CA2 found no abuse of discretion in these rulings.

CA2’s decision can be found here.

In United States v. Cain, in a summary order, CA2 affirmed defendant’s SDNY amended judgment of conviction in which defendant was resentenced by Chief Judge Colleen McMahon to 120 months of imprisonment for conspiracy to commit Hobbs Act robbery. CA2 rejected defendant’s claim that the resentence violated the Double Jeopardy Clause.

By way of background, in 2014, defendant pleaded guilty to conspiring to commit Hobbs Act robbery, as well as using and brandishing a firearm during and in the course of the robbery conspiracy. The district court sentenced defendant to a total of 123 months of imprisonment: a 63-month term and three years of supervised release for the robbery; and a mandatory consecutive 60-month term and five years of supervised release for the brandishing count.

In October 2019, the district court vacated defendant’s brandishing conviction in light of the Supreme Court’s decision in United States v. Davis, 139 S. Ct. 2319 (2019). It resentenced defendant on the Hobbs Act robbery, increasing his term of imprisonment for that count to 120 months.

CA2 rejected defendant’s claim that Chief Judge McMahon violated double jeopardy when she increased defendant’s sentence on the robbery count. When a defendant challenges one part of a sentencing package whose constituent parts are truly interdependent, review of the entire sentencing package does not constitute a double jeopardy violation. Because a vacatur of a section 924(c) conviction leads to resentencing on an interdependent sentence, there is no double jeopardy violation even if it involves an increased term of imprisonment.

CA2’s decision can be found here.

In United States v. Ramkissoon, in a summary order, CA2 affirmed defendant’s EDNY conspiracy to import and possess with intent to distribute a controlled substance convictions, and the 18-month prison term imposed by Judge Sterling Johnson, Jr. CA2 rejected defendant’s claim that the jury’s special verdict finding that the government had not demonstrated beyond a reasonable doubt that defendant knew, or should reasonably have foreseen, that the proved conspiracies involved cocaine, required the district court to sentence him to the least severe zero-to-one year prison term prescribed in §§ 841(b)(3) and 960(b)(7) for trafficking in Schedule V controlled substances, such as codeine mixed with “non-narcotic active medicinal ingredients.”

Apprendi v. New Jersey, 530 U.S. 466 (2000), requires that any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. Following Apprendi, CA2 ruled en banc that “if the type and quantity of drugs involved in a charged crime may be used to impose a sentence above the statutory maximum for an indeterminate quantity of drugs, then the type and quantity of drugs is an element of the offense that must be charged in the indictment and submitted to the jury.” United States v. Thomas, 274 F.3d 655, 660 (2001) (en banc).

CA2 found that no Apprendi/Thomas concern arose here because, to the extent cocaine, even in an unquantified amount, increases the maximum penalty for drug trafficking above what it would be for Schedule III, IV, or V controlled substances, the government here pleaded and proved that the charged conspiracies, in fact, dealt in cocaine. The district court specifically charged the jury that, to find the defendant guilty, “the government must prove beyond a reasonable doubt that the defendant conspired to import cocaine into the United States.” No other drug was at issue.

Because the evidence, viewed most favorably to the jury’s verdict, was sufficient to demonstrate that the controlled substance imported and possessed by defendant was cocaine, the government was not required to further prove that defendant knew or could reasonably have foreseen the type of drug he carried for the district court to sentence him under the statutory penalty provisions pertaining to unspecified amounts of a Schedule II controlled substance.

CA2’s decision can be found here.

Appellate Division, First Department

In People v. Maldonado, AD1 reversed defendant’s Bronx County conviction for criminal sale of a controlled substance in the third degree, finding that it was jurisdictionally defective, because that count had previously been dismissed.

AD1’s decision can be found here.

Appellate Division, Second Department

In People v. Ramirez, AD2 modified defendant’s Queens County stalking conviction and the sentence imposed, finding that Supreme Court erroneously found that defendant was a second felony offender based on a prior Florida armed robbery conviction. The Florida robbery was not a NY predicate because the Florida statute under which the defendant was convicted criminalizes several different acts, some of which, if committed in New York, would constitute a felony, or a violent felony, but some of which would not constitute a felony in New York.

AD2’s decision can be found here.

In People v. Swain, AD2 held defendant’s appeal of his Orange County vehicular assault and DWI convictions in abeyance and remanded for a hearing to determine whether his guilty plea was voluntarily entered.

Defendant, who was at liberty on $5,000 cash bail, appeared in County Court approximately two hours late for a scheduled pretrial suppression hearing. Defense counsel noted for the record that the defendant was having difficulty making childcare arrangements.

The defendant pleaded guilty to DWI after the court suggested its forthcoming bail decision regarding whether it was going to change the bail conditions was contingent on defendant’s acceptance of a plea offer. Defendant, who subsequently moved to withdraw the plea, was entitled to a hearing on the voluntariness of the plea.

The County Court’s response to defense counsel’s questions regarding bail, which included a statement that this was the defendant’s “last chance” to accept the offer, raised a legitimate question as to whether the defendant understood that the court’s purportedly forthcoming bail decision was contingent on acceptance of the offer.

AD2 warned that if, in the course of plea negotiations, a defendant inquires as to the court’s intentions with respect to bail, the better practice is for the court to remind the defendant that the parties are engaged in plea bargaining, not “bail bargaining,” and that the question of bail will be addressed only after plea negotiations are completed.

AD2’s decision can be found here.

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