DECISIONS OF THE WEEK ENDED MARCH 5, 2021

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

The headline this week was a rare en banc decision from the Circuit in Scott, holding that New York’s first-degree manslaughter is a crime of violence under the ACCA and the Career Offender Sentencing Guideline. This decision will have significant ramifications on the meaning of crimes of violence in the immigration context as well. The Circuit’s decision in Collier, on another facet of the evolving definitions of crime of violence, among other things, attempts to untangle the interplay of the timing of those evolving decisions and the defendant’s right to sentence correction through 28 U.S.C. § 2255 motions.

Second Circuit

In United States v. Collier, CA2 affirmed NDNY’s denial of defendant’s § 2255 motion seeking, among other things, vacatur of this 1998 conviction for possession of a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A). CA2 rejected defendant’s contention that his federal attempted bank robbery conviction was not a crime of violence under § 924(c).

In 1997, a jury found defendant guilty of using or possessing a firearm during the commission of a crime of violence under § 924(c)(1) and the crime of violence of attempted federal bank robbery by force, violence, or intimidation in violation of § 18 U.S.C. § 2113(a), and several other counts. Applying the then-mandatory guidelines, the district court sentenced him primarily to a term of 270 months’ incarceration. A significant portion of his sentence stemmed from the district court’s determination that his conviction for attempted federal bank robbery, combined with his prior New York state convictions for attempted second-degree robbery and second-degree robbery, rendered him a career offender under U.S.S.G. § 4B1.1 of the governing version of the guidelines.

In 2017, NDNY denied defendant’s §2255 motion to vacate. CA2 withheld decision on his appeal pending the resolution of several appeals raising closely related issues.

On appeal, defendant challenged both his conviction under § 924(c)(1) and his sentence under guidelines § 4B1.1. He contended primarily that attempted federal bank robbery under § 2113(a) is not categorically a “crime of violence” under either § 924(c) or the guidelines and, therefore, that both his conviction and his sentence were invalid. He also contended that his attempted federal bank robbery, attempted second degree New York bank robbery, and second-degree New York bank robbery are not “crimes of violence” under guidelines § 4B1.2. The government opposed each of these arguments on the merits and also argued that defendant’s § 2255 motion was untimely.

CA2 rejected defendant’s merits argument, holding that attempted federal bank robbery in violation of § 2113(a) is, by its terms, a crime of violence under § 924(c)(3)(A). See United States v. Hendricks, 921 F.3d 320 (2d Cir. 2019) (holding that federal bank robbery in violation of § 2113(a) is a crime of violence under § 924(c)(3)(A)), cert. denied, 140 S. Ct. 870 (2020). CA2 rested its decision on the force clause of § 924(c)’s definition of “crime of violence” and the text of the attempt crime that is set forth in § 2113(a), which expressly requires that the attempted taking—like the completed crime—be perpetrated “by force and violence, or by intimidation.” 18 U.S.C. § 2113(a). A conviction for attempt under § 2113(a) (subparagraph 1) requires that the bank robbery have been committed by “force and violence, or intimidation.” In Hendricks, CA2 relied on the “force clause”—not the now-unavailable “residual clause,” § 924(c)(3)(B)— to conclude that a crime committed by intimidation is a “crime of violence.” 921 F.3d at 328.

The same result was required here.

CA2 declined to explore whether “attempts” to commit other crimes of violence are themselves “crimes of violence” under § 924(c), noting that, “[g]iven the fluidity of the concept of a ‘substantial step’ that could combine with guilty intent to support a conviction, that step might have little to do with the violent aspect of the crime of conviction.”

CA2 found untimely defendant’s additional arguments related to his sentencing under guidelines. § 4B1.2. For example, his vagueness challenge and arguments with regard to whether his New York robbery and attempted robbery convictions are crimes of violence under the guidelines’ career offender provision were found to be untimely.

In Nunez v. United States, 954 F.3d 465, 471 (2d Cir. 2020), CA2 held that the Supreme Court in Johnson v. United States, 576 U.S. 591 (2015) “did not recognize a constitutional right not to be sentenced under the residual clause of the pre-Booker Career Offender Guideline.” Id. at 471. Defendant’s petition was untimely insofar as it challenged his sentence under that pre-Booker guideline, because the right defendant asserted had not yet been recognized by the Supreme Court. No decision newly- announced and now made retroactive excused him from meeting the one-year time limitation set out in 28 U.S.C. § 2255(f).

CA2’s decision can be found here.

In United States v. Chestnut, CA2 dismissed defendant’s appeal from SDNY Judge George B. Daniels’ denial of his motion for compassionate release under § 3582(c)(1)(A), finding that defendant’s completion of his prison sentence and release to supervision rendered the appeal moot.

In 2013, defendant pleaded guilty to conspiracy to commit wire fraud, wire fraud, and aggravated identity theft, and was later sentenced to 116 months’ imprisonment and three years’ supervised release.

In August 2020, defendant moved for compassionate release under § 3582(c)(1)(A). He cited two “extraordinary and compelling reasons” that merited his early release from prison. First, he needed to be released so that he could take over childcare responsibilities for his two teenage children, because the State of Michigan had recently removed the children from their mother’s care. Second, he suffered from an assortment of comorbidities (including high cholesterol and obesity) that placed him at heightened risk of serious complications if he were to contract COVID-19. The district court denied the motion because, in its words, reduction “would simply not satisfy the goals of sentencing.” While the appeal was pending, defendant completed his prison term and was released to supervision.

CA2 concluded that defendant’s release did not automatically render the appeal moot, even though it could not grant the relief sought, because an appeal challenging a criminal sentence will not be rendered moot when the defendant is released from prison if the defendant is still subject to a term of supervision. Arguments for a shorter overall sentence could potentially cause the district court to reduce a defendant’s term of supervision, whether because the original term is deemed to have been too long from inception or “to compensate” for the excess time the defendant served in prison.

Defendant’s appeal was moot, CA2 found, because neither of his arguments had “any tendency” to support a reduction in his term of supervised release. Supervision by the Probation Department would neither increase defendant’s risk from COVID-19 nor impede his ability to care for his children.

CA2’s decision can be found here.

In United States v. Scott, in an en banc decision, CA2, with Judge Reena Raggi writing for the nine-judge majority, and Judge Pierre N. Leval writing for a five-judge dissent, vacated its prior decision in United States v. Scott, 954 F.3d 74, 78 (2d Cir. 2020), and held that New York’s crime of manslaughter in the first degree is categorically a crime of violence under the Armed Career Criminal Act (ACCA), and the Career Offender Sentencing Guideline, § 4B1.2(a).

Defendant pleaded guilty before SDNY Judge Laura Taylor Swain to three federal crimes: attempted Hobbs Act robbery, brandishing a firearm during that robbery, and, at the same time, being a previously convicted felon in possession of a firearm. Defendant committed these crimes in 2006, when he entered a Bronx jewelry store, pointed a gun at the store owner, and ordered him to surrender the contents of his cash register.

This was defendant’s fourth conviction. In 1983, he was convicted of first-degree robbery, in New York. In 1988, he was twice convicted of New York first-degree manslaughter. On one occasion, he fatally shot the victim in the head at point-blank range; on the other, he fatally stabbed the victim.

At defendant’s initial sentencing, the district court found that the career-offender guideline applied. It required that defendant have two or more felony convictions for a “crime of violence” or a “controlled substance offense.” § 4B1.1(a). The district court also found that ACCA’s 15-year mandatory minimum sentence for being a felon in possession of a firearm applied. It required the court to find that defendant had three or more prior “violent felony” or “serious drug offense” convictions. § 924(e)(1). In 2008, it sentenced defendant to 22 years’ imprisonment.

In 2016, with leave of CA2, defendant filed a § 2255 motion arguing that ACCA and the career-offender-guideline enhancements were mistakenly applied because the two manslaughter convictions did not qualify as predicates because NY’s first-degree manslaughter was not categorically violent under either (1) the ACCA and Career Offender Guideline force clauses, or (2) ACCA’s now-invalidated residual clause.

The district court agreed and resentenced defendant. A divided three-judge panel affirmed.

The en banc court reversed. The definition of violent felony and crime of violence under the ACCA and the career-offender guideline are identical. The force clause defines a violent crime by asking whether the crime “has as an element the use, attempted use, or threatened use of physical force against the person of another.” State law identifies the elements of a crime, but federal law determines whether the consequences of the conduct that those elements require render conviction for that conduct a violent crime under federal law. That assessment triggers a categorical inquiry to determine the minimum criminal conduct necessary to satisfy the elements of a crime, without regard to whether the defendant himself engaged in more egregious conduct.

Citing the Supreme Court’s 2014 decision in United States v. Castleman, 572 U.S. 157, the en banc majority rejected the argument that first-degree manslaughter did not qualify as predicate violent crimes because it can be committed in New York State by omission and thus without using force. The Supreme Court there stated that the “knowing or intentional causation of bodily injury necessarily involves the use of physical force.” Id. at 169 (emphasis added). Because New York first-degree manslaughter can be committed only by a defendant who causes death—the ultimate bodily injury—while intending to cause at least serious physical injury, the crime necessarily involves the use of physical force. When a defendant causes death by breaching a legal duty to stop violent force because he intends that that force cause serious physical injury, what he is doing is making that force his own injurious instrument. CA2 noted that six other circuits had held that crimes intentionally causing physical injury are categorically violent.

Writing in dissent, Judge Leval would have held that the rule of lenity applied, and that the statutes involved did not provide fair notice that NY’s first-degree manslaughter statute was a crime of violence, a fact established by the differences of opinion between the judges.

CA2’s decision can be found here.

*Civil Case—Per Special Request of Our Friend and Longstanding NYCBA Member Fred Hafetz, Esq.*

In Chevron v. Donziger, CA2 affirmed in large part, and vacated in part, the SDNY judgment of Judge Lewis A. Kaplan, awarding costs to Chevron pursuant to Federal Rule of Civil Procedure 54(d), several interlocutory orders declining to dismiss civil contempt proceedings against Donziger and a judgment and order finding him in civil contempt.

CA2 found that Judge Kaplan did not err in awarding costs to Chevron, but that he was not clear and unambiguous in prohibiting Donziger from fundraising by selling interests in a fraudulently procured judgment.

The long-running conflict between Donziger and Chevron began over Texaco’s alleged pollution of the Amazon. Representing a large group of indigenous people who claimed to have suffered from the destructive effects of Texaco’s activities, Donziger sued in the Ecuadorian courts and obtained a multi-billion dollar judgment against Chevron, which came to own Texaco. Chevron fought back by successfully suing Donziger and the Ecuadorian plaintiffs in SDNY, alleging civil RICO violations based on allegations that Donziger conspired to procure that judgment through illegal means.

After a 2014 trial in the SDNY RICO action, the district court entered a final judgment that principally awarded damages in the form of litigation costs to Chevron, imposed a constructive trust for Chevron’s benefit on funds obtained by Donziger traceable to the Ecuadorian judgment, and enjoined Donziger from seeking to enforce the Ecuadorian judgment in the United States and from engaging in activities that would allow him to profit from the fraudulently procured judgment. SDNY found massive fraud in Ecuador. Among other things, the district court found that Donziger bribed the Ecuadorian presiding judge to enter a judgment in his clients’ favor in exchange for $500,000 of the judgment’s proceeds; coerced the court to appoint a hand-picked expert whom Donziger paid for favorable testimony; and ghost-wrote the judgment. CA2 affirmed the RICO judgment, and the Supreme Court denied further review. Chevron Corp. v. Donziger, 833 F.3d 74 (2d Cir. 2016), cert. denied, 137 S. Ct. 2268 (2017).

This appeal results from aspects of the SDNY litigation that followed the affirmance. First, Donziger appealed a supplemental judgment that quantified the award of costs due to Chevron for successfully litigating the RICO action. SDNY found that the defendants in the RICO action were jointly and severally liable for 85% of Chevron’s fees, because defendants were responsible for most of the costs incurred totaling $813,602.71. CA2 rejected Donziger’s argument that the district court erred in awarding costs to Chevron because of the large disparity in resources between him and the oil company and misconduct in which Donziger alleged that Chevron had engaged. CA2 found that, by failing to appeal the district court’s general imposition of costs in his merits appeal of the RICO Judgment, Donziger waived any arguments inconsistent with that judgment. While Donziger retained the right to challenge the amount of costs awarded after the judgment was affirmed, CA2 rejected his challenges to the amounts awarded.

Second, Donziger appealed several of the district court’s orders entered during the pendency of contempt proceedings initiated by Chevron arising out of Donziger’s alleged violations of the injunction. Donziger argued that the district court erred because the injunction did not clearly prohibit his selling interests in the Ecuadorian judgment to finance the litigation, and it was inappropriate to hold him in contempt for conduct not clearly prohibited. CA2 found that, because the district court’s order created ambiguity as to what precisely Donziger could no longer do to assist his clients in raising funds to continue their litigation efforts, the contempt finding on that limited issue could not stand. CA2 affirmed the district court’s judgment finding Donziger in contempt of other aspects of its orders other than his participation in the sale of interests in the Ecuadorian judgment.

Third, Donziger appealed the court’s final order and judgment finding Donziger in civil contempt of the injunction and awarding sanctions and attorneys’ fees to Chevron. To remedy Donziger’s contempt, the district court sanctioned him in the amount of $666,476.34 for profiting in that amount from the sale of interests in the Ecuadorian judgment and his failure to assign and transfer to Chevron that profit. It then awarded Chevron $3,433,384 for reasonable attorneys’ fees for successfully prosecuting its motions to hold Donziger in contempt for his violations. Chevron’s request for attorneys’ fees sought reimbursement for all fees incurred in prosecuting its contempt motions, without distinguishing amounts attributable to pursuing different theories of contempt. Because CA2 reversed the district court’s contempt finding as to Donziger’s violation of portions of the Injunction for monetizing the non-appearing defendants’ interests in the Ecuadorian judgment, it vacated the associated relief.

CA2 remanded to the district court to reassess Chevron’s request for fees based on the contempt violations that CA2 upheld.

CA2’s decision can be found here.

Appellate Division, First Department

In People v. Moore, AD1 took the highly unusual step of reducing to time-served the three-and-one-half to seven year sentence imposed following defendant’s New York County conviction for robbery in the third degree and grand larceny in the fourth degree. While the minimum lawful sentence for a second felony offender convicted of robbery in the third degree, the top count here, is two to four years, AD1 reduced it even further, to time-served, a remedy that appears to be unprecedented. AD1 took this step as a matter of discretion in the interest of justice.

The decision is short and lacking in detail, so it is difficult to ascertain why AD1 took this unusual step. My guess is that AD1 empathized with defendant either because he is elderly or he suffers a physical disability. I infer this based on the description that defendant took the victim’s wallet, and then shook his cane at the victim.

AD1’s decision can be found here.

Appellate Division, Second Department

In People v. Fellows, AD2 held defendant’s appeal from his Dutchess County first-degree assault conviction in abeyance and remitted for further proceedings on defendant’s motion to withdraw his guilty plea, finding that his right to counsel was adversely affected when his attorney took a position adverse to him.

Defendant pleaded guilty to assault in the first degree. At sentencing, he told the court that he wanted to withdraw his plea, which he claimed had been coerced by his counsel. County Court relieved defense counsel and assigned new counsel. Thereafter, defendant’s new counsel advised the court that, after evaluating the evidence, the defendant’s allocution, and after speaking to the defendant and his prior attorney, a motion to withdraw the plea of guilty would be frivolous. Although the court granted the defendant adjournments to permit him to retain private counsel to pursue his motion to withdraw his plea, the court ultimately sentenced him while he was still represented by the second assigned counsel.

AD2 found that defendant’s right to counsel was adversely affected, and that he had received ineffective assistance of counsel, when his counsel took a position adverse to his. It held that County Court should have appointed new counsel to represent the defendant with respect to the motion to withdraw his plea of guilty.

AD2’s decision can be found here.

In People v. Tapia, AD2 held defendant’s appeal from his Queens County controlled substance conviction in abeyance and remitted for a hearing to determine whether defendant had been adequately advised by the court that his conviction might result in his deportation.

People v Peque, 22 N.Y.3d 168 (2013) held that due process requires that a court apprise a noncitizen pleading guilty to a felony of the possibility of deportation as a consequence of the plea of guilty.

Here, Supreme Court conducted a joint plea proceeding for the defendant and a codefendant. During that proceeding, the court posed a question directly to codefendant asking if he understood that he could be deported if he entered a plea of guilty, to which the codefendant answered in the affirmative. The court then stated to the defendant, “Mr. Tapia: Do you understand that?” The defendant answered in the affirmative.

AD2 found that, in light of the defendant’s limited education and need for a Spanish interpreter to understand the court’s questions and remarks, the court’s limited inquiry as to whether defendant understood “that” did not ensure the defendant’s understanding that he could be deported as a consequence of his own plea, as opposed to his mere recognition that the codefendant faced deportation consequences.

AD2’s decision can be found here.

Appellate Division, Third Department

In People v. Ackley, AD3 vacated the aggregate six-year sentence imposed following defendant’s Warren County guilty pleas to attempted criminal sexual act in the second degree and attempted burglary in the second degree, finding that County Court improperly imposed a greater than promised sentence.

Pursuant to a plea agreement, defendant waived indictment and agreed to be prosecuted by a superior court information charging him with one count of attempted burglary in the second degree with a promised sentence of four-and-one-half years. Defendant separately agreed to resolve an indictment then pending against him by entering an Alford plea to the reduced charge of attempted criminal sexual act in the second degree in exchange for a prison term of two years. Defendant was advised that his failure to cooperate with the Probation Department could result in the imposition of an enhanced sentence.

At sentencing, County Court noted that defendant’s statement to the Probation Department — that “he did not remember the burglary”—conflicted with defendant’s sworn plea allocution and indicated its intent to impose an enhanced sentence based upon defendant’s failure to cooperate with the Probation Department. Defense counsel objected, requested a hearing and made an oral motion to withdraw defendant’s plea. The court denied counsel’s application and sentenced defendant to the enhanced six-year term.

AD3 found that, given the subjective nature of the court’s requirement that defendant “cooperate” with the Probation Department and the court’s corresponding lack of further inquiry, County Court erred in imposing an enhanced sentence without first affording defendant an opportunity to withdraw his plea.

AD3’s decision can be found here.

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