Federal Defenders of New York Second Circuit Blog

Peggy Cross-Goldenberg

Second Circuit Vacates Sentence Due to Inadequate Factual Determination Regarding Application of the “Otherwise Extensive” Nature of Conduct Enhancement under U.S.S.G. § 3B1.1(a); Affirms Three Convictions in Summary Orders

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In United States v. Kent, 14-2082, the Second Circuit vacated a sentence and remanded for resentencing after concluding that the District Court’s application of a 4-level enhancement under U.S.S.G. § 3B1.1(a) was not supported by adequate factual findings.  The district court determined that Mr. Kent was a leader or organizer of criminal activity that was … Read more

District Court Updates: Driving While Impaired Violation Under NY VTL 1192.1 Does Not Count For Criminal History; Career Offender Guideline Too Harsh

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In United States v. Paredes, 15-Cr-436, EDNY Judge Jack B. Weinstein held that a defendant’s conviction for violating New York Vehicle and Traffic Law Section 1192.1, a violation and not a crime, does not result in criminal history points, thereby allowing the defendant to qualify for safety valve relief from a mandatory minimum sentence.  Judge Weinstein … Read more

Advising Clients Regarding Sexual Polygraph Exams and the Fifth Amendment in Child Pornography Cases

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Earlier this week, in United States v. Von Behren, the Tenth Circuit Court of Appeals held that requiring that a person on supervised release answer questions on a sexual history polygraph that are designed to elicit admissions of criminal conduct violates the Fifth Amendment’s privilege against self-incrimination.  You can read a copy of the opinion here.  … Read more

Judge Rakoff Rejects Proposed Handwriting Expert Testimony

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In an opinion released May 6, in the case Almeciga v. Center for Investigative Reporting, 15-cv-4319, SDNY Judge Jed S. Rakoff granted a defense motion to exclude proposed expert handwriting analysis testimony, holding that “handwriting analysis in general is unlikely to meet the admissibility requirements of Federal Rules of Evidence 702.”  The opinion documents the … Read more

Circuit affirms denial of 18 U.S.C. 3582 sentence reduction

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In United States v. Jimenez, 15-1624, the Circuit affirmed the District Court’s denial of a reduction in sentence pursuant to 18 U.S.C. 3582.  The Circuit held that when the District Court stated that a lower sentence was “foreclose[d]” by the defendant’s participation in four murders, it meant that the original sentence was the minimum sentence … Read more

No need to dismiss juror who learned the defendant had been shackled but did not see him shackled; Circuit declines to decide whether USSG 4B1.3 is susceptible to a vagueness challenge; affirms prosecutor’s comments on summation

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In United States v. Nastri, 15-489, the Circuit held that the District Court did not err either by declining to dismiss a juror or by applying USSG 4B1.3’s criminal livelihood enhancement, and that the prosecutor’s remarks in summation were not improper. The juror in question learned from a third party that another juror had been dismissed after … Read more

Second Circuit Affirms District Court’s Determination of Weight of Controlled Substance and Reliance on Acquitted Conduct

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In United States v. Guerra, 14-1025, the Second Circuit affirmed by summary order the District Court’s methodology for determining the weight of oxycodone prior to sentencing.  The District Court’s finding after relying on “documentary medical and telephone records, recorded conversations, and witness testimony regarding the methodology of the scheme” was a permissible view of the … Read more

Second Circuit affirms above-guideline sentence; declines to consider one IAC claim on direct review, but rejects another where record below was sufficiently developed on the point

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In United States v. Pendergrass, 15-1965, the Second Circuit affirmed the conviction of Terrence Pendergrass, a former captain at Rikers Island, on one count of willfully violating the constitutional rights of an inmate, who died following the ingestion of cleaning supplies, by refusing to get him medical attention and prohibiting other guards from getting him … Read more