Federal Defenders of New York Second Circuit Blog

sentencing

The Second Circuit issues an amended opinion in United States v. Pugh, No. 17-1889-cr, __F.3d__, 2019 WL 6708812 (Dec. 10, 2019) (“Pugh II”), a material support to terrorism case. As in the initial opinion — that was discussed in this blog on Sept. 3, 2019 — the Circuit affirms the convictions, but vacates consecutive prison sentences (totaling 420 months) as procedurally unreasonable because of the inadequate statement of reasons for the sentences.

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Yesterday, the Circuit issued an amended opinion in United States v. Pugh. The initial decision issued on August 29, 2019 (United States v. Pugh, 937 F.3d 108) and was discussed in this blog. See infra, posting of Sept. 3, 2019. The Amended Opinion reaches the same results as the initial opinion. The Circuit  (1) rules … Read more

Circuit Strikes Supervised Release Condition Based on Variation from Pronounced Sentence

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A criminal defendant has the right to be present at the pronouncement of sentence. “Therefore, after a sentence has been pronounced, the written judgment may clarify the terms of the spoken sentence, but may not add to them.” If there is a substantive difference between the spoken and written versions of a sentence, the spoken … Read more

Second Circuit affirms application of Sentencing Guidelines enhancement under § 2D1.1(b)(16)(E) for criminal conduct committed as part of a livelihood, addressing for the first time what constitutes “a substantial period of time” in this context and what it means for criminal activity to be engaged in as a “primary occupation.”

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On October 22, 2019, the Second Circuit, in an opinion by Judge Chin (joined by Judge Cabranes and concurred with, in part, by Judge Calabresi), affirmed the application of two Sentencing Guidelines enhancements, including one for committing an offense as part of criminal conduct engaged in as a livelihood. With regard to that enhancement, the … Read more

Second Circuit affirms convictions arising from a person’s alleged attempt to join ISIS in Syria. But it vacates consecutive prison sentences (of 420 months) as procedurally unreasonable because of the judge’s deficient statement of the reasons for the sentence.

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Second Circuit affirms convictions arising from a person’s alleged attempt to join ISIS in Syria.  But it vacates consecutive prison sentences (of 420 months) as procedurally unreasonable because of the judge’s deficient statement of the reasons for the sentence: United States v. Pugh, No. 17-1889-cr, __F.3d__, 2019 WL 4062635  (Aug. 29, 2019).  In United States … Read more

Second Circuit vacates a sentence as procedurally unreasonable because the district court’s “calculation of drug quantity” wasn’t supported by a preponderance of the evidence

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Second Circuit vacates a sentence as procedurally unreasonable because the district court’s “calculation of drug quantity” wasn’t supported by a preponderance of the evidence: United States v. Burks, No. 18-1361-cr, __ F. App’x__, 2019 WL 4049857  (Aug. 28, 2019).  In a summary order, the Second Circuit vacates and remands “for sentencing” because the evidence didn’t … Read more

Second Circuit Remands For Resentencing Because of Uncertainty About Whether the Judge Understood That he Could Consider the Severity of Mandatory Consecutive Minimum Sentences In Sentencing for the Predicate Offenses.

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In United States v. Brown, No. 18-834 (2d Cir. Aug. 16, 2019), the Court of Appeals reversed a 39-year sentence and remanded for resentencing because it was uncertain whether the judge understood his discretion, after the Supreme Court’s decision Dean v. United States, 137 S.Ct. 1170 (2017), to consider the severity of the mandatory consecutive … Read more

Enhancement under U.S.S.G. 2A6.2(b)(1)(A) for “violation of a court order of protection” does not apply if the defendant was not served as required by law

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In United States v. Thompson, the Second Circuit remanded for resentencing. At sentencing, the District Court determined that the two-level enhancement under U.S.S.G. 2A6.2(b)(1)(A) for “violation of a court order of protection” applied because Mr. Thompson had been “on notice of the issuance” of an order of protection. But Mr. Thompson had not been served … Read more

Judge Weinstein on Alcohol-Related Supervised Release Violations

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Judge Weinstein issued an opinion this week terminating the supervised release of a defendant who violated a standard condition of release by consuming alcohol while in a drug treatment program. See United States v. Thomas, No. 15-cr-382, DE 575 (Nov. 6, 2018), available here. The opinion builds on Judge Weinstein’s more extensive opinion in United States v. … Read more

Judge Weinstein Urges More Frequent Termination of Supervised Release (Including for Marijuana Users)

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Last week Judge Weinstein issued a remarkable opinion, available here, terminating supervised release for a defendant who, apart from habitual marijuana use, has committed no crimes since his release from prison. See United States v. Trotter, No. 15-cr-382, DE 543 (E.D.N.Y. July 5, 2018). The lengthy-but-readable opinion is worth reading in its entirety, particularly for … Read more