Federal Defenders of New York Second Circuit Blog

Rule 32

Supreme Court: District Court’s Failure To Enter Preliminary Order Of Forfeiture Prior To Sentencing Does Not Bar Court From Ordering Forfeiture At Sentencing.

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In United States v. McIntosh, No. 22-7386 (U.S. Apr. 17, 2024), a unanimous Supreme Court held that a district court’s failure to enter a preliminary order of forfeiture prior to sentencing, as required by Fed. R. Crim. P. 32.2(b)(2)(B), “does not bar a judge from ordering forfeiture at sentencing subject to harmless-error principles on appellate … Read more

The PSR Must be Read AND DISCUSSED

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In today’s United States v. Richards, the Second Circuit emphasized the importance of strictly adhering to Federal Rule of Criminal Procedure 32(i)(1)(A), which requires a judge to “verify that the defendant and the defendant’s attorney have read and discussed the presentence report and any addendum to the report.”  The Circuit implied that, where the “discussion” is not … Read more

Waiving Bye-Bye

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United States v. Arevalo, No. 09-0576-cr (2d Cir. December 21, 2010) (Jacobs, Kearse, Straub, CJJ) Defendant Manuel Vigil pled guilty to conspiracy to commit murder in aid of racketeering and using a firearm in connection with a crime of violence. He did so pursuant to a plea agreement that contained an appeal waiver – he … Read more

Dont Speak!

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United States v. Gutierrez, No. 08-3581-cr (2d Cir. February 11, 2009)(Cabranes, Sotomayor, CJJ, Rakoff, DJ) Before Gutierrez was sentenced, his counsel filed a lengthy sentencing memorandum outlining five separate grounds for a below-guideline sentence. The government’s written response sought a guideline sentence. At sentencing, the court did not address the attorneys at all. It gave … Read more