Thursday, January 31, 2008

Burglar Alarm

United States v. Brown, No. 05-5462-cr (2d Cir. January 30, 2008) (Kearse, Hall, CJJ, Rakoff, DJ)

This opinion deals with a seemingly straightforward issue: whether a New York State conviction for burglary in the third degree is a “crime of violence” under Guidelines section 4B1.2(a). It turns out, however, that the issue has a complication.

In Brown’s case, the district court held that the burglary conviction increased his offense level under U.S.S.G. § 2K2.1(a), which uses the Chapter 4 definition of crime of violence. The complication is that, under this definition, a crime of violence is “an offense . . . that . . . is burglary of a dwelling . . . or otherwise involves conduct that presents a serious potential risk” of injury. The New York statute proscribes burglary of a “building,” which is broader than a “dwelling,” thus third-degree burglary can only be a crime of violence under the Guideline definition if it falls within the residual, “otherwise involves” clause.

There is a compelling argument that the Guideline language limiting the definition of crime of violence to the "burglary of a dwelling" forecloses applying the “otherwise involves” clause to a non-dwelling burglary. In fact, there is a circuit split on this question, and so far neither the Supremes nor the Sentencing Commission has answered it.

Here, the circuit held that a New York conviction for burglary three is a crime of violence under the Guidelines, but it got there in a roundabout way. Instead of addressing directly this important question of Guidelines interpretation, the court relied on its decision in United States v. Andrello, 9 F.3d 247 (2d Cir. 1993), which held that the identical residual clause in 18 U.S.C. § 924(e) covered a New York conviction for attempted burglary in the third degree. The court then concluded, without explaining why, that the residual clause in the Guideline definition applied to non-dwelling burglaries and thus that, based on Andrello, third-degree burglary is a crime of violence under the Guidelines.

Comment: This opinion is bizarre. By refusing to take a position on the Guidelines interpretation issue, the Court has made a huge mess out of something that could have been resolved very simply. As it happens, Andrello is inapposite, since it did not deal with the interpretive question presented here. In Andrello, the court considered a definition of “crime of violence” that includes “burglary” or an offense that “otherwise involves” a risk of injury. However, unlike the Guidelines definition, the statute does not limit the “burglary” prong to dwellings. Andrello did not expressly consider whether the limitation to “burglary” in the first part of the definition precluded applying the residual clause to attempted burglary, which would have been analogous to the question here. Andrello simply held that attempted burglary was covered by the “otherwise involves” clause because of its inherent risks. Clearly, then, that case has little to do with Brown’s issue. So now we are left with a decision applying the residual clause to a non-dwelling burglary, but with no relevant, Guideline or statutory-interpretation based reasoning behind it. Sloppy work, indeed!



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Forfeit To Be Tied

United States v. Schlesinger, No. 05-03021-cr (2d Cir. January 30, 2008) (Jacobs, Parker, Wesley, CJJ) (per curiam)

Schlesinger, convicted of mail and wire fraud, made a clever, but unfortunately not clever enough, argument challenging the forfeiture of the proceeds.

The district court had relied on 28 U.S.C. § 2461(c) (2005), which provides that a criminal forfeiture can be alleged in the indictment when “no specific statutory provision is made for criminal forfeiture upon conviction.” Schlesinger pointed out that there is a specific statutory provision for forfeiture of mail and wire fraud offenses, thus § 2461(c) should not apply, but also that the specific provision, 18 U.S.C. § 982(a)(2)(A), applies only to the proceeds of frauds affecting a financial institution, which was not the case here. As the circuit summarized it, although it is not an image one would care to dwell on, Schlesinger argued that the government “falls between two stools.”

The circuit affirmed because the forfeiture here was a civil forfeiture under 18 U.S.C. § 981, which does not limit forfeitures to frauds affecting financial institutions.

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Speed Bump

United States v. Abad, No. 06-0338-cr (2d Cir. January 30, 2008) (Jacobs, Parker, Wesley, CJJ) (per curiam)

Here, the court holds that a failure to make a claim under the Speedy Trial Act in the district court results in a waiver of the issue on appeal. Thus, an unpreserved statutory speedy trial claim cannot be reviewed at all, even for plain error.

Comment: This one’s kind of a no-brainer, since the statute expressly so provides. 18 U.S.C. § 3162(a)(2). The only complication is United States v. Sorrentino, 72 F.3d 294, 297 (2d Cir. 1995), in which the court actually reviewed an unpreserved Speedy Trial Act claim for plain error, even though no motion had been made below. The Abad panel devised a double-barreled solution to the conundrum: first, it blamed the lawyers, noting that no party mentioned § 3162(a)(2) in its briefing in Sorrentino, and then, just to make sure, it overruled Sorrentino.

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Tuesday, January 29, 2008

Summary Summary

The court has not issued a published opinion in a criminal case for a while. But here is the most recent set of summary orders of interest.

In United States v. Matthews, No. 04-1657-cr (2d Cir. January 29, 2008), the court vacated the application of the “street gang” enhancement in 18 U.S.C. § 521 because the government failed to prove that the current federal offense occurred within five years of the predicate offenses, as required by the statute.

United States v. Rodriguez, No. 06-1681-cr (2d Cir. January 28, 2008), vacated the restitution order in a case involving the filing of false tax returns, and ordered further fact-finding on whether the restitution amount should be reduced by the amounts that Rodriguez, the tax preparer, returned to his clients.

And, in United States v. Walker, No. 05-6701-cr (January 23, 2008), the court vacated a $100,000 fine imposed on a defendant whom PSR indicated was indigent. Although the district court noted that the defendant had, in the past, made a lot of money from dealing drugs, this was not an adequate finding about his current or future ability to pay.

Saturday, January 19, 2008

Summary Summary

Here's another group of summary orders of interest:

In United States v. Whitley, No. 05-3359-cr (2d Cir. January 15, 2008), the court accepted a "minimally sufficient" Anders brief.

In United States v. Leonardo, No. 05-1791-cr (2d Cir. January 14, 2008), the court excused the defendant's waiver of his appeal, and found that the government breached a cooperation agreement by withdrawing its 5K1.1 motion for a reason different from that permitted by the agreement.

United States v. Ramirez, No. 06-2869-cr (2d Cir. January 9, 2008), held that the district court did not err in permitting the defendant to withdraw from a plea agreement - to his ultimate detriment - in light of Booker.

In United States v. John, No. 07-3120-cr (January 8, 2008), the court found no impermissible double counting in an assault case, where the district court added a three-level enhancement for physical contact, rejecting the defendant's argument that this was included in the base offense level.

Finally, in United States v. Hamed, No. 06-3966-cr (2d Cir. January 7, 2008), the district court's error in inadvertently replacing a regular juror with an alternate was harmless.

OPEN SESAME

Two recent cases provide some guidance on the requirement in 18 U.S.C. § 3553(c) that the district court state in “open court” its reasons for imposing a particular sentence.

1. United States v. Day, No. 05-4285-cr (2d Cir. January 15, 2008) (Jacobs, Pooler, Sack, CJJ) (per curiam) is particularly shocking. Day was originally sentenced to fifteen years’ imprisonment, after having been convicted of one offense with a ten-year mandatory minimum and one with a five-year mando. In 2006, the circuit, in a summary order, vacated the sentence because it appeared from the record that Judge Platt erroneously believed that the two minima had to run consecutively.

On remand, Judge Platt, without notice to anyone, and in the absence of Day and his counsel, filed an order resentencing him to the same 180-month sentence. The circuit reversed, naturally, holding that the district court violated Day’s constitutional right to be present at sentencing, and that the error was not harmless. The district court also violated Day’s right to notice of an adverse non-Guideline sentence, and failed to satisfy the “open court” requirement of § 3553(c).

The circuit remanded the case to a different judge for resentencing, being careful to note that there was no evidence of an actual - only a perceived - bias against Day. But having imposed an identical sentence after the first remand, Judge Platt might have difficulty “ignoring his previous views during a third sentencing proceeding.”

2. By contrast, in United States v. Espinoza, No. 05-0711-cr (2d Cir. January 11, 2008) (Cabranes, Sack, Katzmann, CJJ) (per curiam), the court found that a district court’s reliance on the entire record, including the PSR, was sufficient to satisfy the “open court” requirement, even though this reliance was only revealed in the written Judgment.

In this drug case, defense counsel objected at sentencing to the PSR’s recommendation of an aggravating role enhancement, but did not give any specifics. The judge never mentioned the enhancement again, then imposed a 360-month sentence, the bottom of the range that included the enhancement. The written statement of reasons (“SOR”) included with the Judgment, however, indicated that the court had adopted the PSR and its Guideline calculations “without [c]hange.”

First, the circuit decided to review only for “plain error.” Even though Espinoza objected to the enhancement, he apparently did not do so with sufficient vigor for the circuit. Since the PSR and sentencing colloquy put him “on notice” that the court was applying the enhancement, his supposed failure to object “cannot be excused.” The court went on to conclude that the cryptic reference to the PSR in the SOR, while clearly not enough, did not constitute plain error. “[F]ailure to satisfy the open court requirement ... does not constitute ‘plain error’ if the district court relies on the PSR, and the factual findings in the PSR are adequate to support the sentence.”

Comment: These cases are both disturbing, although in different ways. Day is disturbing because of the completely bizarre way that the district court dealt with the remand. This was not a so-called Jacobsen remand, in which the circuit asks the district court what it would have done if it had properly understood its authority. It was a full-on plenary remand for resentencing. What was Judge Platt thinking?

Espinoza is disturbing because of the circuit’s highly suspect holding that Espinoza had forfeited his claim. Espinoza objected to the enhancement at sentencing, and that should have been enough to preserve the issue. While the circuit found fault with him for not giving specific evidence that he was not an organizer/leader, in fact, Espinoza had no such obligation -- the government had the burden of proof on the enhancement.

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PORN AGAIN

As the Blog has observed, see Post of 11/29/07: Have You Hugged A Sex Offender Recently?, recently sex offenders fared pretty well in the circuit. Until now. In this most recent crop of cases, sex offenders lost three out of four, and the win was in a summary order, to boot. Here they are:

1. United States v. Hawkins, No. 06-4061-cr (2d Cir. January 16, 2008) (Winter, Straub, Sotomayor, CJJ) (per curiam)

In this case, the court rejected a double-barreled challenge to 18 U.S.C. § 2423(b), which makes it a crime to travel with the intent to engage in illicit sexual conduct, finding that the statute violated neither the Commerce Clause nor the First Amendment. It should be noted that there have been a few cases in other courts claiming that this statute impermissibly impinges on the constitutional right to travel interstate, but that issue remains open in this circuit.

2. United States v. Dupes, No. 05-5522-cr (2d Cir. January 9, 2008) (Walker, Calabresi, CJJ, Keenan, DJ)

Here, the court upheld the imposition of sex-offender-specific conditions of supervised release on a defendant who was charged with and convicted of fraud offenses only, but who had also, in a different case, sustained a contemporaneous conviction for a sex offense. The court also rejected a host of challenges to some of the specific conditions, although the court reviewed them only for plain error, since the particular conditions had not been objected to in the district court.

3. United States v. Lee, No. 06-5034-cr (2d Cir. January 18, 2008) (summary order)

This is the winner of the lot. In this apparent - the order does not specify what the defendant was actually convicted of - sex abuse case, the court vacated the sentence out of concern for the district court’s findings in connection with a vulnerable victim enhancement. Specifically, the district imposed the enhancement after concluding that the victim, who was home-schooled, led a “relatively simple and sheltered life.” The circuit was concerned that these generalized characterizations were not supported by the specific facts required under the enhancement. The sentencing judge also relied on a “double-hearsay statement in the PSR” that the victim had been abused in the past. This was insufficient to support a finding that the past abuse had occurred, and there was, in any event, no evidence to establish a correlation between any past abuse and the victim’s susceptibility to future abuse.

4. United States v. Bowles, No. 06-4319-cr (2d Cir. January 16, 2008) (summary order)

Here, the court upheld the imposition of lifetime supervised release on Bowles, who was convicted of distributing child pornography. This was a huge variance from the Guidelines, which recommended a three-year maximum. The sentence was procedurally reasonable, because the court properly weighed all of the statutory factors. It was also substantively reasonable, even though Bowles’ offense did not involve the actual sexual abuse of a child. The reasons given by the court - Bowles’ limited support network, his problems with “sexual deviance,” and his drug and alcohol problems - supported the sentence. The court did note, however, that under 18 U.S.C. § 3583(e)(2) Bowles has a statutory right to seek a reduction of his supervised release term in the future, if any of those factors change. Unless, of course, Congress repeals the statute.

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TRUTH EXTRACTION

United States v. Glover, No. 05-5047-cr (2d Cir. January 4, 2008) (Pooler, Raggi, CJJ, McMahon, DJ)

At this firearms trial, the judge charged the jury, over objection, that “the crucial, hard-core question” to answer was, “Where do you find the truth?” He also instructed: “The only triumph in any case, whether it be civil or criminal, is whether or not the truth [has] triumphed.” One defendant was acquitted; the other was not and appealed.

The circuit affirmed. It agreed that these instructions, in isolation, would be error because they do not ensure that the jury will have a correct understanding of the presumption of innocence or the government’s burden of proof. In addition, the court strongly discouraged their use in the future: “[T]o the extent that a trial court thinks it appropriate in a criminal case to identify for the jury a single ‘crucial, hard-core question,’ that question should be framed by reference not to a general search for truth but to the reasonable doubt standard . . . .”

Here, however, the error was harmless. The court’s review of the entire jury charge found “no reasonable likelihood” that the jury would think it could return a guilty verdict on anything less than proof beyond a reasonable doubt. The charge as a whole referenced the reasonable doubt standard “at least twenty-seven times.” It also correctly instructed that the presumption of innocence lasted “throughout the trial and even into jury deliberations.”

The court was unmoved by the fact that the erroneous language came at the conclusion of the charge. The jury had a full copy of the charge at its disposal during deliberations, and there was a later, supplemental charge that correctly defined the jury’s task.

Comment: One hopes that this case will put an end to off-the-wall instructions on the bedrock due process issues relating to the burden of proof and the presumption of innocence. What is interesting about the decision is that the court missed the most obvious indication that the error was harmless - despite the “search for truth” charge, the jury acquitted one of the defendants.

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Friday, January 04, 2008

Summary Summary

Here is the latest installment of the Blog's round-up of summary orders of interest. In United States v. Fernandez-Quesada, No. 06-4446-cr (2d Cir. January 4, 2008), the court dismissed a sentencing appeal as moot because the defendant had been released, even though he had a "potentially valid claim" that his sentence was based on an unlawful upward departure. In United States v. Collazo, No. 06-5236-cr (2d Cir. January 3, 2008), a government appeal, the court found the sentence to be procedurally unreasonable where the district court declined to include an aggravating role enhancement in the Guidelines calculations, but did not give adequate reasons. United States v. Johnson, No. 06-4001-cr (January 3, 2008) and United States v. Stewart, No. 06-3411-cr (December 21, 2007), are the court's first two cases to incorporate Gall and Kimbrough; each contains a cryptic order expressing "no view on the reasonableness vel non" of the sentence imposed, but remanding for "plenary reconsideration" under those cases.