Tuesday, July 28, 2009


The circuit is increasingly publishing per curiam (or "PC") opinions in criminal cases. These opinions tend to either answer open questions or make official rulings that have previously appeared only in non-precedential summary orders. PC's are generally short and contain little or no reasoning, which render them very much like - except for their precedential value - summary orders. In light of this, the Blog will now gather PC's in a separate, occasional feature known as "PC World," so that time and space can be dedicated to the court's more salient work. With that introduction, here are the first two:

In United States v. Amico, No. 08-1338-cr (2d Cir. July 21, 2009) (per curiam), the court joined the Sixth, Seventh and Tenth Circuits in holding that a 2001 ameliorating amendment to the "gross receipts" provision, codified in the November 1, 2008, guideline manual as U.S.S.G. § 2B1.1(b)(14)(A), is not retroactive. This had been an open question here.

In United States v. Martinez, No. 08-3454-cr (2d Cir. July 13, 2009) (per curiam), the court held that a crack defendant who was sentenced as a career offender was not eligible for a sentencing reduction under 18 U.S.C. § 3582(c)(2) because his original sentence was "based on" the career offender guideline and not the crack cocaine guideline. The court had previously so held only in summary orders.

Friday, July 10, 2009

Daye of the Weak

United States v. Daye, No. 08-1012-cr (2d Cir. July 10, 2009) (Miner, Raggi, Livingston, CJJ)

Bruce Daye received an 180-month ACCA sentence. On appeal, he raised challenges to the use of all of his prior convictions as ACCA predicates, and the court sent the case back for further findings.

1. Escape

One of Daye’s prior convictions was for escape, most likely under Vt. Stat. Ann. tit. 13, § 1501. At the time of his federal sentencing, circuit law provided that, categorically, all escape convictions were crimes of violence for ACCA. Thus, although defense counsel objected to the characterization of the escape as a crime of violence, the district court made no findings as to the nature of the escape, which is now dispositive under Chambers v. United States, 129 S.Ct. 687 (2009).

Here, the PSR strongly suggested that Daye’s conviction arose from failing to return from a furlough, rendering it likely that the conviction is not an ACCA predicate. Since the record is incomplete, however, the court remanded the case to the district court for consideration of whether, under Chambers, Daye’s escape conviction is an ACCA predicate.

2. Sex Abuse of a Minor

Crime of Violence

Daye also had three prior convictions for sexual assault of a child under a Vermont statute that makes it a crime to engage in a “sexual act with another person” who is “under the age of 16.” A “sexual act” includes any physical contact with the sex organs, and any act of genital or anal penetration.

The circuit concluded that engaging in an illegal sex act with a child is a crime of violence under ACCA’s “residual clause,” which covers conduct that “presents a serious potential risk of physical injury to another.” Infliction of a sexual act upon a child by an adult clearly qualifies under this section given that such offenses “typically occur in close quarters,” where the adult is older, stronger and more experienced and is likely to have coerced the child. The court also rejected the view of some other circuits that such conduct is not a crime of violence where the child, unless “particularly young,” professes to consent. The very nature of the conduct, along with the child’s relative physical weakness, will always create a “serious risk that physical injury will result.”

The court also concluded that such conduct is similar in kind to the predicate offenses that are specifically listed in ACCA. The Vermont statute, although it imposes strict liability as to the age of the victim, requires “deliberate and affirmative conduct,” and a child is typically unable to deter an adult from using coercive force.

Different Occasions?

Two of Daye’s sex abuse convictions arose from a single incident in which he took four boys blackberry picking, while the third arose from a separate incident.

An infrequently invoked provision of ACCA requires that the predicate convictions arise from acts “committed on occasions different from one another.” Under circuit precedent, acts are committed on different occasions if they do not stem from the same “criminal episode.” The relevant considerations include whether the victims were different, whether the crimes were committed at different locations and whether they were separated by the passage of time.”

Here, the district court had no occasion to consider whether Daye’s two “blackberry picking” convictions arose from crimes committed on different occasions. The circuit remanded the case for consideration of this question, as well.

Resolution of the issue is clearly important here. If, as seems likely Daye’s, escape conviction is not a crime of violence, and one of his three sex abuse convictions is knocked out because it was committed on the same occasion as another, which also seems likely, then Daye might not be subject to ACCA.

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Back to the Future

United States v. Pearson, No. 07-0142-cr (2d Cir. July 2, 2009) (Miner, Katzmann, Raggi, CJJ) (per curiam)

Title 18, U.S.C. § 2259 provides that, in sex abuse cases, restitution is mandatory for the full amount of any loss to the victim, including the costs of medical or psychiatric care. Here, in a case of first impression in the circuit, the court held that this section includes restitution for estimated future expenses.

In this case, then, the district court properly ordered such future restitution. The circuit sent the case back anyway, however, because the district court, which arrived at a figure of nearly $ 1 million - the victims were two young girls - did not adequately explain how it arrived at the figure it selected.

The court also held that the issue survived the appellate waiver in Pearson’s plea agreement. With respect to restitution, the agreement merely stipulated that Pearson would pay “in full,” without specifying an amount. This language “plainly contemplate[d] a future determination of the amount necessary to provide ‘full’ restitution.” Thus, while the waiver would have covered the district court’s decision to impose full restitution, it did not “unambiguously” cover an appeal of “possible errors in the determination of what amount constitutes full restitution.”


No Escape

United States v. Mills, No. 07-0308-cr (2d Cir. June 26, 2009) (Kearse, Sack, Livingston, CJJ) (per curiam)

Gary Mills was convicted of violating 18 U.S.C. § 922(g), and received a 188-month sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (ACCA). But for ACCA, his statutory maximum would have been 120 months’ imprisonment.

On appeal he argued, and both the government and the court of appeals agreed, that under Chambers v. United States, 129 S.Ct. 687 (2009), his Connecticut conviction for first-degree escape was not a violent felony.

The Connecticut statute proscribes a variety of conduct, ranging from escape from a correctional institution (which probably is a crime of violence) to failing to return to a halfway house or from a furlough. Here, at the sentencing hearing, the evidence established that Mills had been released from prison to “transitional supervision.” He lived in a private residence, but was required to report regularly to a community enforcement officer. After he repeatedly failed to do so, and the officer could not locate him, Mills was charged with escape.

The government conceded that all it would ever be able to prove was that Mill’s “escape” was merely a failure to return or report. And, as the court agreed, after Chambers, a “failure to report or failure to return is not a violent felony under the ACCA.”

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Summary Summary

Interesting summary orders have been piling up. Here is the latest crop:

In United States v. Strand, No. 08-3730-cr (2d Cir. July 8, 2009), the court held that the district court lacked the authority to impose a drug sentence lower than the mandatory minimum to “adjust” for time served on state sentences for related conduct, where the state sentences had been fully discharged several years before the federal sentences were imposed. The court also held that a valid claim that the defendants were not subject to consecutive § 924(c) sentences under Whitley and Williams was waived by the appellate waiver in the plea agreement.

In United States v. Brown, No. 08-3364-cr (2d Cir. July 6, 2009), the court held that a commerce clause challenge to one of the failure-to-register statues, 42 U.S.C. § 14072, was “not jurisdictional,” and hence was waived by a guilty plea.

In United States v. Douglas, No. 08-0597-cr (2d Cir. June 29, 2009), although the court affirmed the conviction, it was unusually critical of the government's performance. First the court gave "special comment" to the government's discovery violations, including its failure to disclose a recording of the defendant's telephone conversation with his mother and its failure to provide advance notice of an expert witness' testimony. The court also noted with displeasure the government's careless word choice during a critical aspect of its summartion.

In United States v. Hossain, No. 08-3805-cr (2d Cir. June 24, 2009), the court remanded for resentencing because the district court did not adopt the PSR in open court, only in written, post-sentencing writings. This did not satisfy the obligation to calculate and identify the applicable guideline range.

In United States v. Suriel, No. 08-3952-cr (2d Cir. June 4, 2009), the court held that the wording of a Southern District plea agreement’s appellate waiver permitted the defendant to appeal an adverse “safety valve” determination.