Friday, January 29, 2010

PC World

The court's latest Per Curiam opinion, United States v. Rossi, No. 08-6108 (Kearse, Cabranes, Straub, CJJ) (2d Cir. January 28, 2010) (per curiam), holds that the district court had jurisdiction under the pre-1996 restitution statute, 18 U.S.C. § 3663, to amend a restitution order after the defendant had completed her sentence and her term of supervised release. The circuit had previously remanded the case for reconsideration of the restitution order, and this remand restored jurisdiction to the district court, which therefore had the power to impose restitution even though the statute only permits the imposition of restitution "when sentencing a defendant."

Summary Summary

Here are two recent summary orders of interest:

In United States v. Prescott, No. 08-2886-cr (2d Cir. January 12, 2010), the government waived its objection to the defendant's untimely notice of appeal, and the court considered the appeal as if the notice were timely.

In United States v. Oliveras, No. 08-4884-cr (2d Cir. January 8, 2010), the court vacated the sentence, finding that the district court made multiple errors in the defendant's favor. Among other things, the trial court disregarded a mandatory minimum, made clearly erroneous fact findings in determining the guidelines, and might have erred in downwardly departing on criminal history grounds, although the record needed clarifying on this issue.

Thursday, January 07, 2010

Moving Violations

United States v. Guzman; United States v. Hall, Nos. 08-5561-cr; 08-6004-cr (2d Cir. January 7, 2010) (Miner, Straub, Wesley, CJJ)

Defendants Guzman and Hall were both registered sex offenders in New York. Each moved to another state without updating his registration, and was charged with violating 18 U.S.C. § 2250(a), which makes it a crime for a person required to register as a sex offender to travel in interstate commerce and knowingly fail to keep his registration information current. Each defendant moved to dismiss his indictment on several grounds; the district court rejected all but the Commerce Clause challenges. Finding that the statutory scheme (“SORNA”) exceeded Congress’s authority to legislate pursuant to the Commerce Clause, the district court dismissed the indictment in both cases. On these consolidated government appeals, the circuit reversed.

The court first noted that § 2250(a) itself is a proper exercise of the power to regulate commerce, since it only criminalizes a knowing failure to register if the offender travels in interstate or foreign commerce. Interstate travel inherently involves the use of the channels of interstate commerce and is properly subject to congressional regulation under the Commerce Clause.

The district court’s decision had rested on its assessment of the underlying registration requirement, set out in 42 U.S.C. § 16913, which simply requires that the offender keep his registration current. In the district court’s view, this section lacked an interstate travel jurisdictional element and did not regulate activity that substantially affected commerce. Since a conviction under § 2250 would necessarily rely on an unconstitutional registration requirement, the court dismissed the indictments.

The circuit disagreed. It noted that the purpose of the statutory scheme was to make sure sex offenders could not avoid all registration requirements just by moving to another state. Section 16913 was accordingly constitutional under the Necessary and Proper Clause, since Congress has the power to regulate purely intrastate activities where necessary to make a regulation of interstate commerce effective. This section is a “perfectly logical way to help ensure that state will more effectively track sex offenders when they do cross state lines” and, even though it regulates solely intrastate activity, it is reasonably connected to a legitimate commerce power goal.

The court also rejected the defendants’ alternative grounds for affirming the dismissal. The provision that delegates to the Attorney General the authority to specify the legislation’s applicability to sex offenders convicted before the statute was enacted is not an improper congressional grant of legislative authority to the executive branch. And the fact that none of the relevant states had SORNA-compliant registries in place at the time was irrelevant under the court’s recent decision in United States v. Hester (blogged below as SORNA Doom). Nor does SORNA violate the Tenth Amendment since it does not commandeer state officials into administering federal law.


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Circuit to Probation: Three's a Crowd

United States v. Reeves, No. 08-2966-cr (2d Cir. January 7, 2010) (Leval, Pooler, Parker, CJJ)

Lamont Reeves pled guilty to possessing child pornography. As a condition of his supervised release the district court required that he “notify the Probation Department when he establishes a significant romantic relationship and ... inform the other party of his prior criminal history concerning his sex offenses.” It also required that Reeves provide his probation officer with his “significant other’s” contact information.

The court of appeals vacated the condition. First, it agreed that the condition was too vague to be enforceable. “What makes a relationship ‘romantic,’ let alone “significant” in its romantic depth, can be the subject of endless debate that varies across generations, regions and genders.” The condition had “no objective baseline” that would give anyone guidance as to what might constitute a “significant romantic relationship” and Reeves’ continued freedom during supervised release should not hinge on “the accuracy of his prediction of whether [someone else] would conclude that a relationship was significant or romantic.”

In addition, the condition was not reasonably related to the statutory objectives of supervised release: to further Reeves’ rehabilitation and protect the public. There was nothing in Reeves’ history that would suggest he posed a risk to those with whom he might have a “significant romantic relationship.” Nor would the notification promote his rehabilitation. Rather, since it would likely result in the premature end to any relationship he might develop, it was likely to place him at risk of social isolation. This would impair, rather than enhance, his rehabilitation.

Finally, the court found that the condition constituted an unnecessary deprivation of Reeves’ liberty. The court noted that the right to maintain intimate personal relationships is well established, and can only be interfered with by a supervision condition that is “narrowly tailored to serve a compelling government interest.” The only interest identified by the government here was to protect a romantic partner’s children. The court agreed that this could be a compelling interest, but the condition here makes no mention of children. It covers any significant romantic relationship, even those that would not bring Reeves into contact with children.

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Monday, January 04, 2010

PC World

We close out 2009 with two interesting per curiam opinions.

In United States v. MacPherson, No. 08-1829-cr (2d Cir. December 30, 2009) (Newman, Calabresi, Katzmann, CJJ) (per curiam), the defendant argued that the government violated a Pimentel-like non-binding plea agreement by advocating for a sentence higher than the estimate contained in the agreement. In the majority opinion, the court simply held that its precedents on this issue are in conflict, and that, given this, MacPherson, who did not argue in the district court that the government breached the plea agreement, could not establish plain error. Judge Newman concurred. In his view, not only was there no plain error, there was no error at all. He then made an inconclusive effort to harmonize the conflicting precedents, in the end noting that he would "uphold all plea agreements with Pimentel estimates, regardless of whether the Government at sentencing advocates a higher Guidelines range (even one based on previously known facts), as long as the agreement makes clear that the Government is not bound by the estimate and the district judge ascertains at the plea colloquy that (1) the defendant understands that the estimate is not binding and (2) if the estimate is wrong, the defendant will not be permitted to withdraw his plea."

United States v. Frankel, No. 06-1752-cr (2d Cir. December 14, 2009) (Newman, Winter, Cabranes, CJJ) (per curiam) attempts to sort out the mess created when the court, in a series of 2008 orders, first vacated the appointment of Frankel's third court-appointed counsel - due to Frankel's serious misconduct - then dismissed the appeal when he failed to file a timely pro se brief. On remand from the Supreme Court, the circuit did not conclusively rule on whether the right to counsel must be affirmatively waived, and can never be forfeited by misconduct. But the court agreed that the order vacating the appointment of counsel was a sanction, and should therefore have been preceded by notice to Frankel and an opportunity to respond, and that the order dismissing the appeal was tainted by the improper order vacating the appointment of counsel. Accordingly, the court reappointed counsel, directed her to obtain any needed transcripts and file a brief. The court also cautioned Frankel that if he does not want this attorney, he will be required to proceed pro se, and that further misconduct could lead to the imposition of sanctions, which might include dismissal of his appeal.

Summary Summary

United States v. Doe, No. 08-4064-cr (2d Cir. December 14, 2009), looks the First Amendment implications of a defendant's request to seal his case. At sentencing, Doe had asked for the total and permanent sealing of his sentencing transcript. The court denied the request, and Doe appealed. After the government agreed that the decision should be reversed, the court appointed amicus counsel to defend the district court's ruling. The appellate court noted that there were no serious First Amendment concerns, since the order concerned the denial of a sealing request. Moreover, the district court's analysis of the issue correctly treated the public's right of access to sentencing proceedings as qualified, and not absolute. The lower court also correctly recognized that the right of public access to criminal proceedings is presumptive, and that the party seeking to overcome the presumption bears a heavy burden, one that increases the more extensive the closure sought. Since Doe sought the total and permanent sealing of the record, his burden was "heavy indeed" and his reasons for seeking it were insufficient to support a permanent and total denial of public access. Accordingly, the court affirmed the order denying the request for a total and permanent sealing of the record, and remanded to give him an opportunity to apply for a partial and/or non-permanent sealing.