Federal Defenders of New York Second Circuit Blog

Supreme Court Narrowly Construes IRS Obstruction Provision

This week the Supreme Court held that, to establish a violation of the IRS’s obstruction provision, 26 U.S.C. § 7212(a), the government must prove that the defendant was aware of a pending, “targeted governmental tax-related proceedings, such as a particular investigation or audit.” Sentencing Resource Counsel Sissy Phleger has the details: In Marinello v. United States, … Read more

SDNY: Venue for the World (St. Croix edition)

The Second Circuit held yesterday that venue in the SDNY was proper for defendants charged with a narcotics conspiracy that operated in the U.S. Virgin Islands and Florida. The only meaningful link to the SDNY was that, after arrest, a co-conspirator was transported to Manhattan and, at the behest of government agents, called some of … Read more

De Novo Review of Demeanor?

Last week, the Second Circuit reversed a decision suppressing a defendant’s incriminating, videotaped statements to a DEA agent in a case involving Fentanyl distribution resulting in death. See United States v. Haak, No. 16-3876 (Raggi, Hall, Carney) (appeal from WDNY), opinion available here. The substance of the decision is fact-specific and favors the government.  Interestingly, … Read more

Second-Degree NY Robbery Is A Crime of Violence Under the Pre-2016 Career Offender Residual Clause

Today, in a short opinion, the Second Circuit confirmed that second-degree robbery in New York is categorically a crime of violence under the residual clause of the pre-2016 Career Offender Guideline (COG). See U.S.S.G. § 4B1.2 (2015). The opinion in United States v. Smith, No. 15-3313 (2d Cir. 2018) (Winter, Cabranes, Restani) (appeal from Failla, … Read more

Second Circuit Rejects Constructive Amendment Challenge In Conspiracy Case

Yesterday, over a dissent by Judge Chin, the Second Circuit rejected what seemed to be a promising claim that the district court constructively amended the indictment in a drug conspiracy case. See United States v. Dove, No. 14-1150 (2d Cir. 2018) (Walker, Pooler, Chin) (appeal from Cogan, J., EDNY). The opinion in Dove, available here, … Read more

Significant FDNY Cert. Grant Concerning SORNA

Today the Supreme Court granted certiorari in Gundy v. United States, No. 17-6086, to decide whether the Sex Offender Registration and Notification Act (SORNA) violates the nondelegation doctrine by delegating authority to the Attorney General to issue regulations under 42 U.S.C. § 16913(d). The grant is particularly significant because, as Sentencing Resource Counsel Ada Phleger … Read more

New Opinion on When a § 3582(c) Guidelines Recalculation Leaves a Defendant’s Sentencing Range Unchanged

Yesterday, the Second Circuit held that a Guidelines recalculation pursuant to a motion to reduce a sentence must account for Guidelines’ grouping rules that, when applied, leave the defendant’s amended Guidelines range unchanged. See United States v. Carosella, No. 17-896 (2d Cir. 2018) (per curiam) (Walker, Lynch, Chin), opinion available here. Unfortunately, this holding  may … Read more

Guilty Pleas Do Not Bar Appeals Challenging the Constitutionality of the Statute of Conviction

The Supreme Court held this week, in Class v. United States, that a guilty plea does not inherently bar a defendant from arguing on appeal that the statute of conviction violates the Constitution.  Amy Baron-Evans of the Sentencing Resource Counsel has the details: The Supreme Court held in Class v. United States that a guilty plea … Read more

Second Circuit Holds that A Criminally Culpable Corporation Is Not Entitled to Restitution for Its Employees’ Criminal Conduct

The Second Circuit issued two opinions this week on third parties’ claims for restitution and shares of criminally forfeited property from defendants. See Federal Insurance Co. v. United States & United States v. Mazer (related cases), Nos. 16-2967 & 16-3402 (2d Cir. 2017) (Parker, Lynch, Carney) (appeal from Daniels, J., SDNY), opinion available here; United … Read more

VOSR Sentence Declared Procedurally Unreasonable on Plain Error Review

It’s been a slow week for the Second Circuit, but today it issued a summary order reversing a sentence for violations of supervised release as procedurally unreasonable. This holding is unremarkable in light of the district court’s failure to articulate any specific reasons for the defendant’s above-Guidelines sentence. Somewhat notable, however, is the panel’s discussion … Read more