Federal Defenders of New York Second Circuit Blog

Third Circuit holds that “loss,” for Guidelines purposes, means actual loss, not intended loss.

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The Sentencing Guidelines provide that the base offense level for certain crimes must be increased based on the amount of financial “loss.” E.g., U.S.S.G. § 2B1.1(b)(1). The commentary to the Guidelines says that “loss” means the actual or intended loss, whichever is greater. Id. cmt. n.3(A). In an important new ruling, the Third Circuit held in United … Read more

In this summary order, the Circuit vacates a district court judgment that summarily denied a 28 U.S.C. § 2255 motion, alleging that ineffective assistance counsel caused the petitioner to forego a direct appeal. Kenya Brown v. United States, No. 20-3404-pr (2d Cir. Dec. 6, 2022) (C.J.J.’s Livingston, Nardini, and Menashi) (“Summary Order”).

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Petitioner-Appellant Kenya Brown was sentenced on December 28, 2016. But no notice of appeal was filed. Brown had pleaded guilty, under a plea agreement, to conspiring to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846; and possessing a firearm in furtherance of that conspiracy, in violation of 18 U.S.C. § 924(c). … Read more

The Second Circuit holds that N.Y. Attempted Third-Degree Sale of a Controlled Substance, N.Y.P.L. 220.39(1) is NOT a Guidelines Controlled Substance Offense

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Earlier this week, on December 6, 2022, the Second Circuit held in United States v. Gibson, No. 20-3049 (2d Cir. Dec. 6, 2022), that a 2002 New York state conviction for attempted third-degree criminal sale of a controlled substance, NYPL 220.39(1) and 110.00, is not a  “controlled substance offense” under the Guidelines. Gibson was convicted … Read more

In an appeal from a district court’s decision declining to “reopen [a] detention hearing under 18 U.S.C. § 3142(f),” the Second Circuit concludes that the district court declining to reopen the detention hearing wasn’t an abuse of discretion. And the district court’s consideration of the strength of the evidence against the defendant, in weighing the bail factors listed in § 3142(g), didn’t impinge on the presumption of innocence because that’s a trial right that “has no application to a determination of the rights of a pretrial detainee.” United States v. Zhang, No. 22-1761-cr, __ F.4th ____, 2022 WL 17419594 (2d Cir. Dec. 6, 2022) (C.J.J.’s Raggi, Wesley, and Nardini).

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Defendant-Appellant Zhe Zhang was indicted for participating in a successful murder-for-hire scheme. And the district court ordered him detained pending trial noting, among other things. “[t]hat the charged crime was ‘extremely serious’ and the evidence against Zhang was strong.” 2022 WL 17419594 at *2. The defendant didn’t, however, appeal the district court’s original decision denying … Read more

Third time’s a charm? Case sent back to the district court to decide if a 924(c) conviction based on an attempt to commit Hobbs Act Robbery should be vacated.

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In 2004, Lawrence Savoca was convicted for using a gun during an attempt to commit Hobbs Act robbery. Since Johnson was decided in 2016, he has been trying to get this 924(c) conviction vacated in lengthy litigation involving three trips to the Second Circuit. First, the Circuit granted his request to file a successive habeas … Read more

Defendants may not use a purported motion to correct a sentence under Rule 35 to circumvent an appeal waiver.

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The Circuit held today, in United States v. Rakhmatov, No. 21-151(L) (2d Cir. Nov. 17, 2022), that “when a challenge to a prison sentence purportedly under [Fed. R. Crim. P.] 35(a) does not fall within the narrow scope of Rule 35(a), an appeal waiver can bar consideration of the motion.” Rakhmatov pleaded guilty to conspiracy … Read more

Supreme Court to Clarify the Scope of Aggravated Identity Theft

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In case you missed it, the Supreme Court recently granted certiorari in Dubin v. United States, No. 22-10, which presents the question whether a person commits aggravated identity theft any time he or she mentions or otherwise recites someone else’s name while committing a predicate offense. David Dubin was convicted of Medicaid fraud. As the … Read more

Conviction Affirmed on Ground Not Initially Briefed by the Government and First Raised by Court at Oral Argument

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In United States v. Graham, No. 20-832 (2d Cir. Oct. 14. 2022) (Park, joined by Walker; Pérez concurring separately in the judgment), the defendant was convicted after trial of conspiracy to commit mail, wire, and bank fraud. On appeal, she argued, inter alia, that her lawyer rendered ineffective assistance of counsel per Missouri v. Frye by … Read more

BIDEN’S MARIJUANA PARDONS MISS THE MARK FOR NONCITIZEN DEFENDANTS

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The White House announced yesterday that President Biden would grant “full, complete, and unconditional” pardons to U.S. citizens and lawful residents previously convicted of simple possession of marijuana under 21 U.S.C. § 844(a) and D.C. Code 48-904.01(d)(1).  The move is intended to “help relieve the collateral consequences arising from these convictions,” and will doubtless help … Read more

Court must provide habeas petitioner with notice and an opportunity to respond before sua sponte dismissing the petition on procedural grounds

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In Ethridge v. Bell, 2d Cir. No. 20-1685-pr (Sep. 20, 2022), a Panel of the Court (Lynch, Bianco, and Nardini), in an opinion by Judge Bianco, ruled that the district court erred when it sua sponte dismissed Ethridge’s § 2254 petition, challenging his New York drug and weapons conviction on the ground that state courts … Read more