Wednesday, February 25, 2009

Let The Burglar Beware

United States v. Johnson, No. 08-2296-cr (2d Cir. February 25, 2009) (Cabranes, Wesley, CJJ, Korman, DJ) (per curiam)

Defendant Johnson stole a firearm during a burglary, and pled guilty to being a felon in possession of that same gun. At sentencing, he received a four-level enhancement for possessing it in connection with “another felony,” the burglary. The district court based the enhancement on a 2006 application note that provides that the “another felony” enhancement applies where a defendant finds and takes a firearm during a burglary. Johnson argued that this violated the Ex Post Facto clause, since his offense occurred before the application note was promulgated.

The circuit affirmed. The application note was added to the guidelines to resolve a circuit split on the applicability of the enhancement, and was intended merely to “clarify” that it applied to burglaries involving the theft of firearms. The note neither “altered the law of this Circuit nor otherwise changed a prior binding interpretation of” the relevant guideline. Therefore, it did not implicate the Ex Post Facto clause.


Tuesday, February 24, 2009

Re: Possessed

United States v. Ayon-Robles, No. 07-0785-cr (2d Cir. February 24, 2009) (Jacobs, Wesley, CJJ, Arcara, DJ) (per curiam)

Recently, in an immigration case, Alsol v. Mukasey, 548 N.Y.S.2d 207 (2d Cir. 2009), the court held that a second state-court conviction for simple drug possession was not an “aggravated felony” under the relevant immigration statute, 8 U.S.C. § 1101(a)(43), because it did not satisfy the statutory definition of “drug trafficking crime[].” See Simply Possession, posted 11/29/08.

The court’s decisions in this area have been confusing, however. The illegal reentry guideline, U.S.S.G. § 2L1.2, incorporates the same statutory definition, but the court has in some cases suggested that it might interpret that provision differently in the sentencing context. This case appears to have put that confusion to rest. Here, the court held that since the guideline specifies that the term “aggravated felony” has the “meaning given that term in [8 U.S.C. 1101(a)(43)],” Alsol’s interpretation of the term “aggravated felony” under the immigration statute controls the interpretation of that term under the guidelines.


Sunday, February 22, 2009


United States v. Carr, No. 06-5490-cr (2d Cir. February 19, 2009) (Kearse, Sack, Kaztmann, CJJ)

Carr was convicted after a jury trial of racketeering, drug and firearms offenses. At his original sentencing, since the racketeering predicate was murder, the then-mandatory guidelines prescribed a life sentence, and that is what he received, plus five years on a § 924(c) count. On Carr’s first appeal, the court affirmed his convictions and the district court’s guidelines calculations, but ordered a Crosby remand.

On remand, the court resentenced him to forty years’ imprisonment: five years on the gun count consecutive to thirty-five on the racketeering counts. On his second appeal, Carr tried to get the circuit to revisit the district court’s guideline calculations, even though they had been affirmed on his first appeal, arguing that the law-of-the-case doctrine should not apply where the district court imposed a different sentence after a Crosby remand.

The circuit disagreed. Under the law-of-the-case doctrine, when the court of appeals has ruled on an issue and has remanded the case to the district court, the district court on remand is required to follow that ruling, unless there is an intervening change in controlling law, new evidence, or the need to prevent a manifest injustice.

After a Crosby remand, if the appellate court has already adjudicated the challenges to the guidelines calculations, the law-of-the-case doctrine still applies. Even post-Booker sentencings require the district court to calculate the guidelines. And, since interpretations of the guidelines are question of law, if they have been addressed by the circuit prior to the remand, only “compelling circumstances” such as those identified above warrant an exception to the law-of-the-case doctrine.

Thus, the district court cannot, on a Crosby remand, revisit guideline issues that were adjudicated on the prior appeal, and the parties cannot renew their previously adjudicated challenges on a subsequent appeal, even if the district court has imposed a new sentenced on the remand. Nor does Kimbrough represent the type of intervening change in the law that might excuse application of the law-of-the-case doctrine. Under
Kimbrough , district courts are free to disagree with the guidelines on policy grounds, but there is nothing in Kimbrough that permits district courts to disregard the appellate court’s jurisprudence interpreting the guidelines.


Double Trouble

United States v. Reyes, No. 06-3699-cr (2d Cir. February 19, 2009)(Leval, Cabranes, Livingston, CJJ) (per curiam)

Defendant Reyes participated in the beating of a victim with, amongst other things, a baseball bat. The victim was left with severe brain damage - his wife told the court that he would “never wake up again.”

Reyes pled guilty to assault in aid of racketeering. He faced a sentencing range of ninety-two to 115 months’ imprisonment, which included an enhancement for “permanent or life threatening bodily injury” under U.S.S.G. § 2A2.2(b)(3)(C). At sentencing, however, the district court invoked U.S.S.G. § 5K2.2, which authorizes an upward departure for “physical injury,” and sentenced him to 180 months’ imprisonment.

On appeal, Reyes claimed that the sentence was the result of impermissible “double counting.” The circuit affirmed, reminding that impermissible double counting only occurs when a court acts “in contravention of the applicable statute or Sentencing Guideline.” Here, the defendant could not point to any statutory or guideline language that would preclude the application of both § 2A2.2(b)(3)(C) and § 5K2.2.

Moreover, the two sections, while similar, are “not identical.” The Chapter 2 section covers either permanent or life threatening injuries. An “injury can be permanent, and thus qualify for the increase, even if it is less severe than the injury suffered by the victim in this case.” Alternatively, an injury can be “life-threatening temporarily and yet have no long term effects” after the victim recovers. Here, by contrast, the injury was both permanent and “exceptionally serious” - thus it was “considerably graver than what is necessary to qualify for an increase under U.S.S.G. § 2A2.2(b)(3), making a departure based on § 5K2.2 appropriate.


Dont Speak!

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 Gutierrez an opportunity to speak, indicated that it had considered the § 3553(a) factors, then imposed a sentence at the bottom of the guideline range.

Defense counsel objected, pointing out that the court had not considered the issues raised in his sentencing memorandum, and that the court had imposed a sentence without giving counsel a chance to speak. At counsel’s request, the court vacated the sentence. Counsel then argued the issues in the sentencing memorandum, and the government briefly responded, again asserting that a guideline sentence would be appropriate. Counsel responded by pointing out that neither the government nor the Probation Department had much credibility on that point, since they argued that a guideline sentence is the correct one in every case, which counsel argued was untrue. In response, the court told defense counsel, in essence, to shut up. It complained that he did not “respect the people who are working here” and ordered him to be “quiet” from then on. The court then reinstated the prior sentence, still without addressing any of counsel’s arguments.

The circuit affirmed. It agreed that under Rule 32 the sentencing court is required to give defense counsel an opportunity to speak. But here, the court followed the correct procedure. It vacated the prior sentence, and permitted defense counsel to make an argument. The court also rejected the claim that the district court did not give counsel a “meaningful” opportunity to be heard.


This case is maddening. Defense counsel made several specific arguments about why a below-guideline sentence should be imposed. And, even though the district court sentenced the defendant twice, it never addressed any of them, and the circuit was not bothered by this at all. It simply cannot be right that, as long as the sentencing court mentions 3553(a), it does not have to rule on the arguments raised by the defense.

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Sorry, Wrong Number

United States v. Poindexter, No. 07-1151-pr (2d Cir. February 10, 2009) (Walker, Calabresi, Katzmann, CJJ) (per curiam)

In 1995, Melvin Poindexter was charged with a cocaine conspiracy, with no drug quantity specified in the indictment. He therefore faced a 20-year maximum, but no mandatory minimum. Before trial, the government filed a prior felony information, which increased his statutory maximum to 30 years. After a jury convicted him, the court concluded that he was responsible for 15 to 50 kilograms of cocaine, and that he was a career offender. The court then used the career offender offense level for offenses with a statutory maximum of life, since that would have been his maximum if he had been indicted for the quantity of cocaine the court found, which of course, he was not. The corresponding guideline range was 360 to life, and the court sentenced him to 360 months. His original appeal did not challenge the district court’s selection of the higher base offense level.

In 2006, Poindexter filed a section 3582(c)(2) motion based on a retroactive Guideline Amendment, number 591, which requires that the initial selection of the offense guideline be based “only on the statute or offense of conviction,” and not on judicial findings. Poindexter correctly noted that the district court had erroneously selected the wrong career offender base offense level, because it did not use the one for the maximum term of imprisonment authorized for the offense of conviction. It used its own judicial fact-finding to compute a higher offense statutory maximum. Correctly calculated, Poindexter’s base offense level should have been 34, not 37.

Nevertheless, the district court denied the motion, and the circuit affirmed. The plain language of Amendment 591 “applies only to the choice of the applicable offense guideline” itself “and not to the subsequent selection of the base offense level.” The court agreed that career offender cases are somewhat different, since the career offender guideline uses the term “offense of conviction” to determine both the applicable guideline and the offense level within the guideline. Nevertheless, the court adopted the reasoning of an unreported Eleventh Circuit case to reject that distinction. Amendment 591 does not shape the meaning of “offense of conviction” throughout the Guidelines; it is “limited in scope to the determination of the applicable offense guidelines in Chapter Two of the Sentencing Guidelines.” Since Poindexter did not challenge the district court’s choice of applicable offense guideline, Amendment 591 does not help him.


While one cannot quibble with the reasoning of this case, the outcome is quite frustrating, since Poindexter’s sentence was clearly illegal. And this was no trivial error. The bottom of the correct range would have been nearly 100 months shorter - 262 instead of 360. The problem, of course, is that his attorneys did not raise the error originally, at least not in his first appeal; it is unclear whether they raised it when he was sentenced. One would hope that someone can figure out a way to get this guy some relief.


Summary Summary

In the past month or so, there have been only two summary orders of interest. Here they are:

Guidelines section 4A1.2(c)(2) lists offenses that are too petty to count in the criminal history score, and instructs that offenses “similar to” those on the list are also excluded. In United States v. Muse, No. 08-0831-cr (2d Cir. February 20, 2009), the court rejected the argument that misdemeanor marijuana possession is similar to other offenses on the list, such as “minor traffic infraction or public intoxication.” This has been an open question in this circuit; since a summary order does not have a precedential effect, it is still open.

In United States v. Valle-Iglesias, No. 09-1968-cr (2d Cir. February 13, 2009), the court agreed that a prior conviction for breaking into a commercial office and stealing computer equipment was not a crime of violence under U.S.S.G. § 2L1.2(b).

Sunday, February 08, 2009

Resale Wrongs

United States v. Parker, No. 07-0620-cr (2d Cir. February 3, 2009) (Feinberg, Leval, Cabranes, CJJ)

Recently, the court held that the “buyer-seller” rule did not apply where the defendant, a drug buyer who resold the drugs, clearly had a stake in the seller’s operation. See "Buyer’s Remorse," posted October 26, 2008.

Here, the court goes over this same material again. The appellants were frequent customers of a large crack distribution operation in Utica, New York. They resold the crack, and the sellers knew it. While this alone is not enough to create conspiracy liability - “mere awareness on the part of the seller that the buyer intends to resell the drugs is not sufficient to show that the seller and buyer share a conspiratorial interest to further the buyer’s resale” - here, there was more.

Specifically, there was evidence that could lead a jury to find that the sellers shared with the buyers an “interest and a stake in the buyers’ intention to resell the drugs” and that the buyers and the sellers shared an intention “to be a continuing part of, and to further, the sellers’ drug selling operation.” In other words, this was “cooperative venture” in which the “buyers and sellers had a stake in additional transfers of drugs beyond the transfers from the original seller to the original buyer.”


Friday, February 06, 2009

If I Had A Hammer

United States v. Pope, No. 08-1007-cr (2d Cir. February 3, 2009) (Cabranes, Livingston, CJJ, Eaton, DJ)

Steven W. Pope pled guilty to two counts of bank burglary, in violation of 18 U.S.C. § 2113(a). During one of the burglaries, he broke a side window of a Chase branch with a sledgehammer. Based on this, at sentencing, the court enhanced his offense level by two levels for possessing a “deadly weapon.”

He unsuccessfully challenged this enhancement on appeal. The Guideline, § 2B2.1(b)(4), requires the enhancement if a “dangerous weapon ... was possessed.” Here, Pope conceded that the sledgehammer was a dangerous weapon and that he possessed it, but argued that he used it only to facilitate the burglary, and did not intend for it to serve as a weapon. To the circuit, this did not matter. “The fact that he did not use the sledgehammer as a weapon is irrelevant to the issue of possession.” Moreover, to “hold otherwise would directly contradict the plain meaning of this provision of the Guidelines, and would lead to absurd results.”


Cashed and Burned

United States v. Varrone, No. 07-4533-cr (2d Cir. January 30, 2009) (Calabresi, Sotomayor, Parker, CJJ)

Joseph A. Castello ran a check cashing business. He cashed more than $200 million in checks that exceeded $10,000 - charging a four percent check-cashing fee - for which he was obligated to file currency transaction reports (CTR’s). He did not, however, and was convicted by a jury of violating 31 U.S.C. §§ 5313 and 5322(a). On appeal, he challenged a restitution order, and claimed that the forfeiture order violated the Excessive Fines Clause of the Eighth Amendment. The circuit vacated.

The Restitution Order

The restitution order involved a fraud victim, who was induced to send a $300,00 check to a bogus financial firm. This had nothing at all to do with Castello, except that the firm cashed the check at his establishment. When the victim contacted Castello, he falsely represented that he was an “honest man,” who always paid his taxes. The district court ordered, as a condition of Castello’s supervised release, that he repay the $300,000.

Addressing a question of first impression in this circuit, the court reversed. Under 18 U.S.C. §§ 3583(d) and 3653(b)(2), a district court can order a defendant to “make restitution to a victim of the offense” as a condition of supervised release. However, it has long been clear that, under the restitution statutes, restitution can be ordered only for the “losses caused by the specific conduct that is the basis for the offense of conviction.” Here, the court agreed that this is also true for the restitution provisions of the supervised release statute. “[R]estitution can be ordered as a condition of supervised release ... only to compensate for losses caused by the specific conduct that is the basis for the offense of conviction.” Since the loss here was caused by an unrelated fraud scheme, and not Castello’s failure to file CTR’s, the restitution order was not authorized.

The Forfeiture

In the district court, the government sought, and obtained, a forfeiture order that included: a money judgment of more than $9 million, which represented four percent of the value of the checks exceeding $10,000 that Castello cashed without filing CRT’s; Castello’s interest in real property that he purchased with tainted funds; and about $2.7 million in funds that went through a Citibank account that Castello used to conduct his check cashing business.

On appeal, he challenged the forfeiture under the Excessive Fines Clause of the Eighth Amendment. A forfeiture is excessive if it is “grossly disproportional to the gravity of a defendant’s offense.” In United States v. Bajakajian, 524 U.S. 321, 337-39 (1998), the Court identified four considerations for determining whether a forfeiture is excessive: the “essence of the [defendant’s] crime” and its relation to other criminal activity; whether the defendant “fit into the class of persons for whom the statute was principally designed; the maximum authorized sentence and fine; and the nature of the harm caused by the offense.

Here, the district court neither evaluated the Bajakajian factors nor made factual findings regarding them. The circuit noted that the forfeiture order against Castello was more than forty times the maximum permissible fine, thus it was not presumptively permissible under the Eighth Amendment. It also noted that this - the third Bajakajian factor - was the only one conclusively established by the record, and it weighed against the constitutionality of the forfeiture. The other three factors were “not clearly established by the record.” In the absence of “factual development by the district court regarding” the three other Bajakajian factors, the court concluded that the record was insufficient to evaluate the Eighth Amendment claim, and remanded the case for further proceedings.

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Structural Failure

Gibbons v. Savage, No. 07-3306-pr (2d Cir. January 28, 2009)(McLaughlin, Leval, Pooler, CJJ).

At Robert Gibbons’ state court trial, the judge closed the courtroom during jury selection, expelling the only spectator, Gibbons’ mother. After exhausting his state court appeals, Gibbons filed a 2254 petition, which the district court dismissed. The circuit affirmed. In doing so, however, it created a new doctrine - the “trivial structural error.”

The circuit agreed that the state judge deprived Gibbons of his Sixth Amendment right to a public trial, because there was indeed a “closure” of the courtroom – the public was “categorically excluded,” and the courtroom was closed to “all spectators” during jury selection

The court also agreed that the Waller v. Georgia, 467 U.S. 39 (1984) test was satisfied. First, there was no “overriding interest” for the closure. Even though the courtroom was small, space could still have been found for a single spectator. And, while the judge indicated that he was concerned about taint, there was no evidence at all that Gibbons’ mother might communicate improperly with members of the venire. Second, the closure was broader than necessary to protect that interest, because the court banned all spectators, when the the mother was the only spectator who raised even a hypothetical risk of taint. Third, the judge did not meaningfully consider Gibbons’ suggestion that his mother sit in the well until space became available elsewhere; he gave “no respectable reason for refusing to adopt it.” Finally, for the same reasons, the judge did not “make findings adequate to support the closure.”

Next, the court noted that, under Waller, public trial violations are “structural errors,” in that they normally require a reversal without considering the impact of the error on the verdict. Despite this, however, “it does not follow that every temporary instance of unjustified exclusion of the public - no matter how brief or trivial, and no matter how inconsequential the proceedings that occurred during an unjustified closure - would require that a conviction be overturned.” Thus, the court held that the public trial violation here was “too trivial,” and thus that the conviction should stand.

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United States v. Irving, No. 07-1312-cr (2d Cir. January 28, 2009)(Kearse, Sack, Raggi, CJJ)

Stefan Irving is a former physician who was convicted, after a jury trial, of child pornography offenses, and several other counts relating to his travel to Mexico and Honduras to engage in sexual acts with children. The district court sentenced him to 262 months’ imprisonment, the top of the Guideline range. A 2005 Second Circuit decision disposed of his trial-related claims. This opinion, which arose in the context of the district court’s decision to adhere to the original sentence after a Crosby remand, disposes of his sentencing claims.

Irving’s Guidelines claims are not particularly interesting. First, he unsuccessfully challenged the district court’s choice of Chapter 2 offense conduct guidelines, but the court’s choices were clearly correct under the relevant instructions in the Guidelines manual.

He also challenged the “vulnerable victim” enhancement, claiming that his victims’ vulnerability was already covered by the Chapter 2 enhancement for victims under the age of twelve. The circuit agreed with the district court that other aspects of Irving’s victims, apart from their age - they were homeless and were without “parental or other appropriate guidance” - made them unusually vulnerable.

Finally, the court, on its own, raised the question whether it violated the Double Jeopardy Clause to sentence Irving for both possessing and receiving the same images of child pornography. The court recognized that two circuits have held that this is a double jeopardy violation, and also noted that, so far, the Second Circuit has ducked the question. Here, the court did so again, finding that Irving did not satisfy the plain error standard.

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Building Block

United States v. Hurell, No. 06-5653-cr (2d Cir. January 28, 2009) (Kearse, Calabresi, Sack, CJJ) (per curiam)

In each of these three consolidated cases, all government appeals, the district court held that New York convictions for burglary in the third degree or attempted burglary in the third degree were not crimes of violence as defined in the career offender provisions of the Sentencing Guidelines. Based on an intervening decision, United States v. Brown, 514 F.3d 256 (2d Cir. 2008), the court reversed.

More importantly, however, the court noted that there is a circuit split on whether burglary of a building, as opposed to a dwelling, constitutes a crime of violence under the relevant sections. The court not weigh in on the issue here, but rather called upon the Sentencing Commission resolve it, noting that the issue is of “particular significance” in the quest to avoid unwarranted sentencing disparities.

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