Monday, May 31, 2010

PC World

In its two latest per curiam opinions, the court discusses a traffic stop and the district court’s obligation to sua sponte ensure that the defendant is competent.

In United States v. Harrison, No. 09-2907-cr (2d Cir. May 26, 2010)(Jacobs, Miner, Wesley, CJJ)(per curiam), the court rejected a claim that the police unreasonably prolonged an otherwise lawful traffic stop by questioning the defendant and his passengers about matters unrelated to the basis for the stop. The total time elapsed was only “five to six minutes.”

In United States v. Arenburg, 08-5090-cr (2d Cir. May 25, 2010) (Miner, Cabranes, Wesley, CJJ) (per curiam), a magistrate judge found the defendant competent to go to trial and proceed pro se a few months before trial. But at trial, the defendant behaved quite erratically, blaming MGM studios for conducting illegal drug trafficking in his name, and questioning witnesses about “radio waives” and “microwave channels.” His summation was equally bizarre. Despite this, the district court never revisited the question of the defendant’s competency. Finding this to be error, the court remanded for further findings on the defendant’s competency. Whenever there is reasonable cause to question a defendant’s competency, the district court must conduct a hearing, even if the parties have not raised the matter themselves.

Interestingly, court noted that the defendant had fully served his sentence and was no longer in the country, but did not consider the issue to be moot.

Summary Summary

Here are the three latest summary orders of interest.

In United States v. Cabrera, No. 09-2553-cr (2d Cir. May 26, 2010), the defendant argued that claims based on his pretrial motions should not be deemed waived by his guilty plea because the district court did not advise him of this during the allocution. The circuit disagreed: "We have never required that defendants be informed that by pleading guilty they waive the right to appeal defects in the prior proceedings."

In United States v. Waithe, No. 07-2234-cr (2d Cir. May 19, 2010), the court bounced an Anders brief, then held that defendant's prior escape conviction under 18 U.S.C. § 751 was not a crime of violence for the purposes of the illegal reentry guideline.

In United States v. Barris, No. 08-4247-cr (2d Cir. May 17, 2010), the court continued to apply the Williams rule precluding mandatory 924(c) sentences when the defendant is sentenced to a longer mandatory minimum on another count, even though the issue is now before the United States Supreme Court.

Something Barrow-ed

United States v. Oluwanisola, No. 08-4442-cr (2d Cir. May 21, 2010)(Leval, Pooler, Parker, CJJ)

Taking a case to trial after the client has proffered is a difficult thing to do. Most proffer agreements have a clause permitting the government to introduce the defendant’s proffer statements to rebut evidence offered or elicited, or factual assertions made by, the defense. In United States v. Barrow, 400 F.3d 109 (2d Cir. 2005), the court held that such rebuttal clauses apply to all factual assertions, including those made in counsel’s arguments and cross-examination, but are not triggered by arguments that challenge the sufficiency of the evidence. Here, having found that the district court misapplied Barrow at Oluwanisola’s heroin trafficking trial, the court vacated the judgment and remanded the case for a new trial.

The appellate court identified several problems with the district judge’s approach. First, the judge ruled that arguing that specific elements of the crime had not been proven would trigger the rebuttal clause. The circuit noted that Barrow did not make this distinction and there is “no rationale that would compel such a result.” Interpreting the rebuttal clause in this way “would leave the defendant, for all practical purposes, defenseless.” Here, the ruling improperly compelled defense counsel to limit his opening statements to “generalized statements” about the burden of proof, but prohibited him from arguing that the government would be unable to sustain its burden with respect to any particular elements of the offense.

The trial judge also made erroneous rulings with respect to cross-examination. First, defense counsel was not permitted to cross-examine one witness about whether he had made a written report about an event that he testified he observed. The circuit held that this did not contradict - directly or indirectly - proffered facts. “The defendant’s admission in his proffer statement of the facts the witness testifies to having observed is not an admission that the witness observed those facts.” In addition, the judge based a second cross-examination ruling on a clearly erroneous fact. He prohibited counsel from cross-examining an agent about a matter that Oluwanisola mentioned in a post-arrest statement, not in his proffer.

Collectively, these rulings violated Oluwanisola’s Sixth Amendment right to counsel, and the error was not harmless. While the evidence was legally sufficient, defense counsel's ability to challenge evidence on drug quantity and Oluwanisola’s knowledge of what was in the packages he was involved with was severely hampered. The appellate court could not “conclude with fair assurance” that the errors “did not substantially influence the jury.”

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Sunday, May 23, 2010

Reefer Gladness

United States v. Needham, No. 06-5652-cr (2d Cir. May 14, 2010) (Cabranes, Katzmann, Parker, CJJ)

The three defendants here were part of a larger group that was in the business of robbing drug dealers of drugs and drug proceeds. They were all convicted of a Hobbs Act conspiracy, which included robberies of cocaine and heroin dealers, and each was also convicted of one substantive count involving the robbery of a marijuana dealer. Consistent with circuit law at the time, the district court instructed the jury that “all illegal drug activity, even if it is purely local in nature,” affects interstate commerce. While the defendants’ appeal was pending, the circuit held that this instruction was wrong: proof of drug trafficking does not automatically prove an affect on interstate commerce. Instead, “even in drug cases, the jury must find such an effect as part of its verdict.” Finding plain error in the interstate commerce jury charge here, a divided panel court reversed the defendants’ substantive, marijuana-related robbery convictions, but affirmed on the conspiracy count.

The Majority’s View

Under current circuit law, the interstate effect cannot be “presumed” when the object of a robbery is to obtain illegal drugs or drug proceeds. This element, like any other, must be found by jury beyond a reasonable doubt.

Accordingly, the court treated the error here as a charge error, because the charge withheld an element from the jury’s consideration. But, since this was a plain error case, rather than assessing the record to determine whether the error was harmless, the court considered whether the error “affected substantial rights”; that is, “whether the error was prejudicial.” To make this decision, the majority “closely examine[d] the record to determine whether the jury, had it been properly instructed, would have found the jurisdictional element satisfied, or whether the government failed to prove this element beyond a reasonable doubt.”

The entire panel found the interstate element satisfied for the defendants’ conspiracy conviction. A conspiracy that “targets cocaine and heroin, and the proceeds from their sale, undoubtedly meets” the relevant legal standard - the “possibility or potential of an effect on interstate commerce, not an actual effect” - because those drugs “cannot be produced in New York, and thus necessarily travel in interstate commerce.” Thus, even though the government introduced no evidence to support this proposition, the jury was “capable of concluding, based on its lay knowledge, that cocaine is imported into the United States.” This, according to the court, satisfied the jurisdictional element “beyond a reasonable doubt.”

But two judges had a different view of the substantive convictions involving robberies of marijuana dealers. Apart from the large amounts of money involved in those robberies, the government “offered no evidence to support an interstate nexus,” such as proof that the marijuana originated out of state, was sold to out-of-state-customers, or that the victims crossed state lines in conducting their business or would have purchased goods in interstate commerce with the proceeds.

And, according to the majority, “marijuana may be grown, processed, and sold entirely within New York.” Thus, “reviewing for prejudice,” the majority found that the erroneous jury charge “may very well have affected the outcome of the district court proceedings.” The proof was “simply too bare to establish, without more, the required interstate nexus,” even though that nexus need be only “subtle or slight.” The majority refused to find that effect based solely on the amount of money involved in the robberies: “the sheer amount of money, standing alone, does not demonstrate an interstate effect.”

The Dissent

Judge Cabranes had a different view. He agreed that the jury instruction was erroneous. But he had “no trouble concluding beyond a reasonable doubt that the jury would have returned the guilty verdict even absent the instruction that was given.” He found no possibility that “the jury in this case could have concluded that the robberies at issue involved marijuana that was grown, processed, and sold entirely within New York” and was “confident” that the jurors would have found that at least some of the drugs or proceeds derived from interstate or foreign commerce “based on their lay knowledge and common sense.”

Moreover, Judge Cabranes was also “confident that a properly instructed jury would have found the required effect on commerce even if the jury had assumed that the marijuana in question was grown, processed, and sold entirely within New York.” To him, Congress actually has Commerce Clause power to prohibit the local cultivation and use of marijuana, thus, the robbery of the proceeds of even homegrown marijuana is covered by the Hobbs Act.


This decision prompts a couple of issues that require some further thought.

First, this decision reveals a serious problem with current Second Circuit interstate commerce jurisprudence. According to the court, the government need not introduce any evidence at all of interstate commerce for robberies involving heroin, cocaine or their proceeds, even though this is an element of the offense. There is dangerous and a slippery slope here. Many federal crimes have an interstate commerce element as the jurisdictional hook, and there is a real danger that this “we don’t need any evidence, just the jurors’ common sense” approach could be extended to other criminal statutes. Could jurors use their “common sense” to conclude that, say, stolen property from other states so commonly ends up in New York that the government need not introduce evidence on this element? A better rule would be to require the government actually introduce evidence on interstate commerce in every case where it is an element, and not just some of them. This would hardly be a burden - any law enforcement officer who knows anything about drugs could be an “expert” on the question.

The second weird thing about this decision is the relief granted. Although the majority found a prejudicial charge error on the substantive counts, it did not vacate those counts and remand for a new trial, as it typically does when there is a charge error, even one that dilutes or eliminates an element. Instead, the court reversed the convictions on the marijuana-based counts, which is typically the relief granted only where the court has found the evidence insufficient. Why would the majority secretly treat this as a sufficiency case, and not say what it is doing?

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Deconstruction Project

United States v. Dorvee, No. 09-0648 (2d Cir. May 11, 2010) (Cabranes, Parker, CJJ, Underhill, DJ)

In this first-of-a-kind opinion, the court (1) held that a within Guideline - albeit statutory maximum - sentence was substantively unreasonable and (2) found that an offense Guideline other than the crack Guideline was not the product of the Commission’s traditional empirical role and hence, under Kimbrough, was not entitled to deference.


While chatting online with undercover officers posing as teenage boys, Justin Dorvee sent them computer files containing child pornography. He was arrested when set out to meet one of the boys. A search of his home revealed several thousand still images and more than 100 videos containing child pornography. He ultimately pled guilty to one count of distribution of child pornography.

Under a correct application of U.S.S.G. § 2G2.2, which prescribed a base offense level of 22 plus enhancements for such things as the number and content of the images, he faced a sentencing range of 262 to 327 months’ imprisonment. However, since the statutory maximum sentence was 240 months, 240 months became his Guideline range.

At sentencing, Dorvee introduced medical evidence intended to mitigate that sentence, including evidence that he was a compulsive collector and had serious personality disorders, but was “not a predator” and would respond well to treatment. The court expressed sympathy for him, but still concluded that he was a “pedophile” who would have sex with a younger boy if he could, even if he would not initiate the behavior. After reviewing the statutory factors, the court sentenced Dorvee to 240 months, less six months and fourteen days of uncredited time he had served in state court, for a total sentence of 233 months and sixteen days.

The Appeal

The circuit vacated the sentence, finding it to be both procedurally and substantively unreasonable.

1. Procedural Error

The procedural error was the district court’s apparent view that the Guideline range was still 262 to 327, and not, per U.S.S.G. 5G1.1(a), 240 months, along with its erroneous corollary conclusion that the higher range was the benchmark for any variance.

This error was not harmless - it “carried serious consequences” for Dorvee. If the district court intended to impose a sentence “relatively far below the guideline,” as it said it did, Dorvee “did not receive the benefit of such an intention.” Where “the district court miscalculates the typical sentence at the outset, it cannot properly account for atypical factors and we, in turn, cannot be sure that the court has adequately considered the § 3553(a) factors. That is what appears to have happened here, and constitutes procedural error.”

2. Substantive Error

The court also deviated from its usual practice of refraining from reviewing for substance until the procedural errors have been corrected, and instead “reach[ed] both the procedural and substantive reasonableness of the sentence [since it found] both types of error.”

Here, even accepting the need for punishment and the requirement that it defer substantially to the district court’s judgment, the court found the sentence to be substantively unreasonable.

First, the district court placed unreasonable weight on its assumption - unsupported by the record evidence - that Dorvee was likely to actually sexually assault a child. The district court’s explanation of the need for deterrence also “ignored the parsimony clause,” offering no “clear reason” why the maximum sentence, instead of some lower sentence, was required to deter an offender like Dorvee.

Next, the circuit took issue with the child pornography Guideline itself, calling it “fundamentally different from most” and noting that “unless applied with great care, [it] can lead to unreasonable sentences that are inconsistent with what § 3553 requires.” With this introduction, the court then systematically deconstructed U.S.S.G. § 2G2.2.

It began by noting that the Sentencing Commission “did not use [an] empirical approach in formulating the Guidelines for child pornography.” Rather, it systematically increased the penalties based directions from Congress, even as it “openly opposed these Congressionally directed changes.”

The court went on to agree that the enhancements included in § 2G2.2 “cobbled together through this process routinely result in Guidelines projections near or exceeding the statutory maximum, even in run-of-the-mill cases” because the base offense level has been increased from 13 to 22 and the enhancements “apply in nearly all cases.” As a result, “adherence to the Guidelines results in virtually no distinction between the sentences for defendants like Dorvee, and the sentences for the most dangerous offenders who, for example, distribute child pornography for pecuniary gain and who fall in higher criminal history categories.”

Under Kimbrough, a court “may vary from the Guidelines range based solely on a policy disagreement with the Guidelines, even where that disagreement applies to” many offenders or offenses. “That analysis applies with full force to § 2G2.2.”

The opinion ends with a message to district judges, encouraging them to “take seriously the broad discretion they possess in fashioning sentences under § 2G2.2 ... bearing in mind that they are dealing with an eccentric Guideline of highly unusual provenance which, unless carefully applied, can easily generate unreasonable results.”

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Sunday, May 09, 2010

Package Deal

United States v. Torres, No. 09-1771-cr (2d Cir. May 5, 2010)(Kearse, Hall, CJJ, Rakoff, DJ)

Every once in a while, when the judge and jury refuse to acquit an innocent defendant, the circuit steps in and sets things right. This is such a case. Finding that the evidence was insufficient to establish that Torres knew that there were drugs in some UPS packages that he went to great lengths to pick up, the court reversed the conviction and remanded for entry of a judgment of acquittal.


On April 30, 2008, a UPS deliveryman attempted to deliver two large “high value” packages to “Jose Torrez” at an address in Yonkers. Two men intercepted the driver near that address and asked for the packages. The driver asked for identification, but because it showed an address in Brooklyn, he would not release the packages.

The men were persistent. They followed the truck to its next destination and tried again. The driver checked with his supervisor, who told him not to release the packages. The driver later turned the packages over to a loss prevention specialist, who brought them to a UPS facility in Mount Vernon, where a security specialist opened them. The packages contained kitchen cabinets with secret compartments that contained about ten kilograms of cocaine, worth as much as $ 1 million.

Working with law enforcement, UPS arranged a controlled delivery. They called the addressee’s telephone number and spoke with “Jose Torrez” who, after expressing frustration about the earlier refusal to deliver the packages, agreed to pick them up at a UPS store in a Yonkers strip mall. An hour later, defendant Torres rode up to the sore in a van driven by someone else and went in to pick up the packages. He showed a New York State ID card in the name “Torres, Jose, A” with a Brooklyn address, and began to load the packages onto a hand truck, rebuffing all offers of assistance.

In the meantime, after noticing police nearby, the driver of the minivan fled. Torres, now with both packages loaded, looked in vain for his ride. For ten or fifteen minutes he explored the parking lot, returning frequently to the packages. He finally went into the store to call a cab, all the while looking over his shoulder. After he made the call, officers arrested him. Post-arrest, Torres said that “this is what happens when you do favors for somebody,” and that a “man in a Yonkers bodega had paid him to pick up the packages.” He later said that he worked at the bodega and was homeless.

The trial evidence also included various UPS documents, and phone records showing numerous calls between the addressee’s telephone number and telephone numbers in Puerto Rico.

The jury convicted Torres of a drug trafficking conspiracy, but acquitted him of a substantive count. Asked whether five kilograms or more of cocaine could be attributed to him, the jury answered, “No.” Judge Gardephe, after denying Torres’ Rule 29 motion, sentenced him to 78 months’ imprisonment.

The Circuit Reverses

In a conspiracy case based on circumstantial evidence, there must be “circumstantial evidence of knowledge and specific intent” and to be “sufficient to sustain a conviction [it] must include some indicia of the specific elements of the underlying crime.” The jury’s inferences must be “reasonably based on evidence presented at trial, not on speculation.”

Here, the evidence was sufficient for the jury to conclude that there was, in fact, a conspiracy to distribute cocaine. It also established that Torres had a connection with the packages containing the drugs and, given his highly suspicious behavior, that he “was most likely aware that the [p]ackages contained contraband of some kind.”

What the court “d[id] not see in the record, however, [was] any evidence that Torres knew that the [p]ackages contained narcotics.” After all, there was no cooperating witness testimony, no evidence of any drug records implicating him, and no proof of any narcotics-related conversation to which Torres was a party. Moreover, the cocaine “was well concealed and not visible.”

Nor was it true that the addressee’s telephone number was proven to be associated with Torres. It was registered in a different name and was used after Torres was in custody. Moreover, that numerous calls were made from that phone to numbers in Puerto Rico did not matter. There was no evidence that Torres was a party to or from any of those calls.

Finally, the court rejected the government's argument that Torres must have known what was in the packages because otherwise the conspirators would not have trusted him to receive $1 million worth of cocaine. There was no evidence of “the nature of Torres’ associations with the persons who shipped the cocaine or with the persons who expected to distribute it.” Nor was evidence that Torres received a payment commensurate with the value of the drugs, or of evidence of “any conduct by Torres other than his efforts to gain possession of” the packages, which “did not show that he had knowledge of” their contents. Moreover, the evidence showed that Torres was not placed in a position of trust. The packages were addressed to a location that he did not control, and he was always accompanied by at least one other person when he tried to pick them up. The only time he was alone with the packages was when the driver of the van spotted the police and fled.

In sum, the court concluded, “viewed as a whole and taken in the light most favorable to the government,” the evidence was “insufficient to permit the jury to find beyond a reasonable doubt that Torres knew that the packages addressed to him contained narcotics, and hence was insufficient to establish that he had knowledge of the purposes of the conspiracy of which he was accused.”


Saturday, May 08, 2010

American Idle

United States v. Hernandez, No. 09-1421-cr (2d Cir. May 5, 2010) (Jacobs, Kearse, Calabresi, CJJ)

Here, the circuit found that the defendant’s sentence was procedurally unreasonable because it took the district court fifteen years to get around to imposing it.


In 1991, Hernandez was convicted after a jury trial of drug trafficking and associated crimes of violence. Judge Platt sentenced him to 405 months’ imprisonment and a large fine. The sentence included an aggravating role enhancement. On Hernandez’ first appeal, decided in 1993, the court vacated the sentence because the judge had imposed the enhancement over objection but had made “no finding” with respect to Hernandez’ role.

Judge Platt did not act on the remand. In 1997, at the government’s request, he appointed counsel for Hernandez, but still did not resentence him. Finally, in 2008, fifteen years after the remand was ordered, Hernandez’ mother wrote the judge a letter “expressing bewilderment.” This, finally, prompted the him to act. Sort of. He held a conference, attended only by the government, in which he indicated that there was no need for further findings on Hernandez’ role because “[Judge Kearse] did it right there in her own opinion, answered the question she said I didn’t answer.”

In December of 2008, Hernandez filed a sentencing memorandum urging the court to impose a lower sentence, which included substantial evidence of his rehabilitation. Judge Platt finally conducted the resentencing in March of 2009. Sort of. The proceeding consisted of his handing out a written memorandum that addressed the role enhancement, but “did not discuss evidence of Hernandez’s rehabilitation.” After hearing from the parties, he imposed the same sentence, without ever “expressly react[ing] to evidence of Hernandez’ rehabilitation or other proposed mitigating factors.” The Judgment included a Statement of Reasons that indicated that the judge had “considered all the ... factors in 18:3553(a),” even though he was “not required to [conduct] a full re-sentence outside of the Court of Appeals Mandate.”

The Court of Appeals’ Decision

The court vacated the sentence, holding that the failure to “consider how intervening developments - in particular Hernandez’s rehabilitation - affected the Section 3553(a) analysis” was error. That evidence, if credited, “could affect the weight given to considerations that were discounted in 1991 by the gravity of Hernandez’ crime” such as his youth and the fact that he was a drug addict when the crime occurred.

What is unusual about this case is that the court second-guessed Judge Platt’s rote incantations that he had considered all of the statutory factors. The court held that this was a case where “record evidence suggest[ed] otherwise.”

First, the judge “misconstrued the scope of re-sentencing.” He thought, at least at first, that he did not need to make factual findings in support of the role enhancement at all. Moreover, his written sentencing order focused only on those findings, apparently based on his belief that he was not required to conduct a full resentencing. This caused him to “perfunctorily den[y] those arguments it deemed outside the limited scope of resentencing.”

This was procedural error “in a resentencing so long delayed.” While there was a presumption that the resentencing would be limited, not de novo, here there were compelling reasons for that presumption to be overcome. During the fifteen year hiatus, the law of sentencing had changed substantially and Hernandez might have undergone a substantial rehabilitation.

Given this, that Judge Platt focused only on the seriousness of the offense was an indication that he “failed to consider the Section 3553(a) factors.” This procedural error required that the sentence again be vacated.

The court also ordered that the resentencing take place before a different judge. Since Judge Platt imposed the same sentence twice without making the required findings, he may “reasonably be expected to have substantial difficulty ignoring his previous views during a third sentencing.” Also, while there was no evidence of actual bias against Hernandez, an objective observer might question the judge’s impartiality. Finally, reassignment will not waste judicial resources, since no judge has yet done what needs to be done in this case.

The Concurrence

Judge Calabresi concurred, writing separately to set out his view that the fifteen-year delay by itself warranted reassignment to a different judge, since “the circumstances surrounding that gap may lead an objective observer to conclude that it was caused in part by the behavior of the sentencing judge.”

Any resentencing outcome in such a situation might reasonably be called into question. If the judge imposes a lower sentence after the delay, an observer might think he did it to compensate for his own dilatory behavior or to punish the government for its neglect. If the judge imposes the same sentence, an observer might think that he was just trying to “sweep the matter under the rug” by suggesting that the delay was immaterial to the outcome. Finally, if the judge imposes a higher sentence, an observer might wonder if the judge improperly blamed the delay on the defendant.


This is the second time in less than one year that the court has confronted a case where Judge Platt let a resentencing languish for an unacceptably long time. In August, the court decided United States v. Ray, in which it held that Judge Platt’s unexplained and prejudicial delay in resentencing the defendant - as here, the delay was fifteen years - amounted to a due process violation. See Delay Gratification, posted August 31, 2009.

The two cases offer an interesting contrast in appellate litigation strategy. Ray pitched the issue as constitutional one, arguing, unsuccessfully, under the Sixth Amendment right to a speedy trial and, successfully, under the due process clause. Although she prevailed, to some degree, she did not win a full resentencing. And she had to show “substantial and demonstrable” prejudice to get even the limited relief she got.

Hernandez, on the other hand, chose to make a 3553(a) argument. He seems to have had an easier time, since he did not have to make such a strong showing of prejudice. In fact, here, it does not seem that the case really turned on prejudice at all. While, at least in theory, any defendant making a § 3553(a) procedural claim should argue that the error was not harmless, the Hernandez opinion never gets to that question. There is nothing in the opinion to indicate that the court thought that there either should or would be a lower sentence on remand.


Summary Summary

Here are two recent summary orders of interest and one from March that we missed at the time:

In United States v. Pender, No. 08-5474-cr (2d Cir. May 6, 2010), there was a factual dispute as to whether the defendant was on parole when he committed the federal offense. Although the district court had concluded that he was, the court remanded the case for reconsideration. Notably, this issue was raised in the defendant's pro se brief, not his counseled brief.

In United States v. Oruche, No. 09-0665-cr, (2d Cir. April 26, 2010), the court vacated one defendant's sentence because he was erroneously classified as a career offender. One of his two prior drug convictions was for simple possession, not trafficking. The court also vacated a co-defendant's sentence because the district court had used the erroneous career offender sentence as a point of reference.

Finally, in United States v. Harper, No. 09-0622-cr (March 31, 2010), the court vacated a statutory maximum supervised release violation sentence because the district court's comments at sentencing suggested that it misunderstood the applicable law and failed to consider the need to avoid unwarranted sentencing disparities.

Saturday, May 01, 2010

PC World

United States v. Key, No. 08-3218-cr (2d Cir. April 28, 2010) (Miner, Cabranes, Wesley, CJJ) (per curiam)

This interesting per curiam holds that a defendant's appeal of the denial of his crack resentencing motion under 18 U.S.C. § 3582(c)(2) was rendered moot by his release from prison.

Although Key was still on supervised release, the court found that the possibility that the district court would reduce or terminate his supervised release term - assuming that it could - was "remote and speculative." The district court's findings in denying the § 3582(c)(2) motion caused the circuit to "strongly doubt" that the court would exercise its discretion in that way.


Collateral Damage

United States v. Cerna, No. 09-1170-cr (2d Cir. April 27, 2010) (Katzmann, Hall, CJJ, Rakoff, DJ)

Against the backdrop of the circuit’s ongoing concern over the “exceptionally poor quality of representation often provided by attorneys retained by aliens as they attempt to negotiate the complexities of our immigration law,” here, the circuit reversed the district court’s denial of the defendant’s collateral challenge to the legality of his deportation.

Jose Cerna came to the United States from El Salvador when he was ten. He became a lawful permanent resident but, as a teenager, had several brushes with the law - two drug sale convictions when he was sixteen, a gun possession charge two years later, and another drug sale when he was twenty-one. While serving this last sentence, deportation proceedings were commenced against him.

After a hearing, an immigration judge found Cerna deportable, but also found him to be eligible for 212(c) relief. Cerna was represented by counsel and the attorney had forty-five days to file the application but never did so. After the 212(c) deadline passed, the judge issued a deportation order. That order, along with an advice of the right to appeal to the BIA was sent to Cerna’s counsel with a “cc” to Cerna at a New York State correctional facility. Cerna’s attorney took no further action on the case and about one year later Cerna was deported to El Salvador.

Cerna was found back in the United Sates in late 2000, charged with illegal reentry in 2004, and arrested on that charge in 2007. He then moved to dismiss under 8 U.S.C. § 1326(d), which authorizes a collateral challenge to the deportation underlying an illegal reentry charge.

This section requires that the defendant (1) exhaust his administrative remedies in connection with the deportation, (2) establish that the proceedings improperly deprived him of the opportunity for judicial review and that (3) the deportation was fundamentally unfair. As to the first two prongs, Cerna argued that his attorney’s failure either to file the 212(c) application or to tell him that he had not was ineffective assistance of counsel that both excused his failure to exhaust and deprived him of judicial review. Cerna’s motion included a declaration explaining that he had no reason to believe that his attorney would not apply for 212(c) relief, did not learn that the attorney had not done so until he was deported, and never received the written notice of the right to appeal.

Despite these assertions, the district court denied the motion. It held that Cerna “knowingly and intelligently waived his right to any administrative remedies” by taking no action to contest the deportation during the period between the order and his actual removal from the country. The court also held that the deportation was not fundamentally unfair because Cerna’s criminal record made it unlikely that he would have been granted 212(c) relief in any event.

On appeal, the circuit first concluded that the district court’s finding that Cerna knowingly and voluntarily waived his administrative remedies was clear error. The basic problem was the district court’s failure to resolve the factual contradiction before it: the notice of the right to appeal the deportation was apparently “cc”’d to Cerna, but he asserted that he never received it. Perhaps the court discredited the assertion, but it “offered no explicit statement to that effect and no explanation of why it did not find Cerna to be credible.” Nor could the mere passage of time serve as the basis for a finding of a valid waiver since, during this period, Cerna believed that his attorney was fighting the deportation. “We decline to hold that an incarcerated alien whose lawyer has stated that he would file an application for relief from deportation has an obligation to check up on the lawyer to confirm that the application has been filed or risk waiving his right to appeal.” The court thus agreed with Cerna that his counsel’s ineffectiveness excused his failure to exhaust his administrative remedies.

As for the judicial review prong, the court merely applied existing precedent holding that ineffective assistance of immigration counsel can result in the deprivation of judicial review of a deportation.

Finally, the court agreed that the district court’s conclusion that Cerna was unlikely to have received 212(c) relief was unsound. The question was “whether Cerna had a reasonable probability of receiving” it and the circuit’s prior decisions have found that probability in cases no worse than Cerna’s.

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