Justia U.S. 2nd Circuit Court of Appeals Opinion Summaries

Defendant pleaded guilty to one count of conspiracy to provide material support to a foreign terrorist organization—the Islamic State of Iraq and Syria (ISIS) (also referred to as the Islamic Sate of Iraq and the Levant or ISIL)—in violation of 18 U.S.C. 2339B(a). Defendant violated conditions of her presentence release by resuming contact with known supporters of ISIS and other extremist groups, attempting to conceal these communications from law enforcement authorities, and then lying to the FBI about her conduct. Defendant also pleaded guilty to obstruction of justice.The Second Circuit vacated defendant's 48 month sentence, concluding that defendant's far-below-Guidelines range is substantively unreasonable. In this case, defendant faced a total Sentencing Guidelines range of 360 to 600 months' imprisonment, and her far-below-Guidelines sentence was outside the bounds of what was reasonable in light of the facts and circumstances of this case. The court explained that the district court assigned defendant's need for rehabilitation from years of trauma and abuse overwhelming weight while failing to give adequate consideration to the competing goals of sentencing—including the need for the sentence to protect the public, deter criminal conduct of the defendant specifically and others generally, promote respect for the law, and reflect the seriousness of the offense committed. Therefore, the district court abused its discretion and the court remanded for resentencing consistent with the 18 U.S.C. 3553(a) factors. View "United States v. Ceasar" on Justia Law

The en banc court concluded that, based on the facts of this case, the officer's pat-down search of a suspect for weapons was reasonable under the Fourth Amendment. The en banc court wrote to confirm several fundamental, and well-settled, principles of Fourth Amendment jurisprudence: 1) a police officer's verbal directives to a suspect do not transform a stop into a search when they do not amount to a physical trespass or intrusion into an area subject to a reasonable expectation of privacy, irrespective of any reasonable belief by a suspect as to whether a search is occurring; 2) a police officer's subjective intent bears no weight in determining when that officer's interaction with the suspect constitutes a search; and 3) in evaluating whether an officer has reasonable suspicion that a suspect is armed, courts must look to the totality of the circumstances confronting the officer, as viewed objectively by a reasonable and cautious officer on the scene. The en banc court explained that when the circumstances give rise to reasonable suspicion that a suspect has a weapon, an officer need not rule out alternative explanations—whether innocent or otherwise—for a suspect's behavior before deciding to conduct a pat-down for his safety. Accordingly, the en banc court vacated the panel decision and affirmed the district court's judgment. View "United States v. Weaver" on Justia Law

The Second Circuit affirmed defendant's conviction of bank fraud, making false statements in support of a passport application, and aggravated identity theft. Defendant argues that the district court erred by failing to grant her motion for an acquittal based on her failure to complete the passport application paperwork and swear an oath affirming to its veracity.The court agreed with the district court's determination that submitting a fraudulent passport application, even when unsigned and without swearing the required oath, satisfies the elements of 18 U.S.C. 1542. The court explained that defendant's argument that an oath and signature on the passport application form are required to establish criminal liability is not supported by the statute and regulations defining a passport application. Furthermore, the statute and regulations define a passport application as the submitted application form and supporting documents. Because submission occurs when a person provides a federal official with an application form and any supporting materials for review, and defendant acknowledged submission of a falsified application form to a passport officer, the district court did not err by failing to grant defendant's motion for acquittal. View "United States v. Gu" on Justia Law

Defendant is a French banker who is charged with transmitting false, misleading, and knowingly inaccurate commodities reports, and with conspiracy to do the same, in violation of the Commodity Exchange Act (CEA). On appeal, defendant challenged the district court's application of the fugitive disentitlement doctrine and denial of her motions to dismiss the indictment.The Second Circuit concluded that it has jurisdiction to review the disentitlement ruling, but none to review the merits of extraterritoriality or due process. The court concluded that defendant is not a fugitive and, even if she were a fugitive, the district court abused its discretion in disentitling her. In this case, given her innocent residence as a foreign citizen abroad, given the nature of the charged offense and her remoteness from the alleged harm that it caused, given her line of work, and given her nonfrivolous challenge to the extraterritoriality of the criminal statute, the exercise of discretion to disentitle her was an abuse. Accordingly, the court reversed the order disentitling defendant and remanded for further proceedings to consider or reconsider the merits of her motions to dismiss. The court dismissed this appeal insofar as it seeks review of the (alternative) rulings on extraterritoriality and due process. View "United States v. Bescond" on Justia Law

The Second Circuit vacated the district court's order denying defendant's motion for a reduced sentence pursuant to Section 404 of the First Step Act of 2018. The court held that defendant's multi-object conspiracy conviction, with a crack cocaine object that included a drug-quantity element triggering the statutory penalties set forth in 21 U.S.C. 841(b)(1)(A), qualifies as a "covered offense" eligible for a sentence reduction pursuant to the First Step Act. Therefore, defendant's 254-month sentence on his multi-object conspiracy conviction is eligible for a sentence reduction under Section 404(b). The court remanded for further proceedings. View "United States v. Jordan" on Justia Law

The Second Circuit vacated the district court's denial of defendant's motion for compassionate release, holding that 18 U.S.C. 3582(c)(1)(A)'s exhaustion requirement is not jurisdictional.The court clarified that the administrative exhaustion requirement is not a jurisdictional limitation on a court's power to consider an inmate's motion for compassionate release. Rather, section 3582(c)(1)(A)'s exhaustion requirement is a claim-processing rule that may be waived or forfeited by the government. In this case, the government withdrew any defense based on defendant's prior failure to exhaust his administrative remedies. The court remanded for the district court to consider his motion on the merits. View "United States v. Saladino" on Justia Law

Defendant, a member of a gang known as MBG, was convicted after a jury trial of a racketeering conspiracy, committing a violent crime in aid of racketeering (VICAR) – namely, a shooting of rival gang members, and using a firearm in furtherance of the racketeering conspiracy and the VICAR offense. The district court granted defendant's motion for judgment of acquittal on the VICAR and firearm counts on sufficiency of the evidence grounds and denied it as to the racketeering conspiracy count. Both the government and defendant appealed.The Second Circuit treated defendant's notice of appeal as an appeal from the judgment of conviction on the racketeering conspiracy count. The court held that the evidence was sufficient to support the jury's verdict in its entirety and that the district court erred to the extent that it granted defendant's motion. Accordingly, the court affirmed so much of the district court's order as denied defendant's motion as to the racketeering conspiracy count, reversed so much of it as granted that motion, and vacated the judgment below with instructions to the district court to reinstate the jury verdict finding defendant guilty on the VICAR and firearm counts and to resentence defendant. View "United States v. Howard" on Justia Law

Perez was born in rural Mexico in 1989 and entered the U.S. without authorization at age 13. He has two children, who were born in the U.S., whom he visits and helps support financially. In July 2016, Perez was attending a barbeque when a violent fight broke out. Several young men wielding bats and machetes were attacking a member of a rival gang. Perez borrowed a firearm from an acquaintance and fired several shots into the air. Hearing the gunshots, the young men scattered, and Perez returned to the barbeque and returned the gun to his acquaintance. Days later, the NYPD obtained a video recording of the incident, identified Perez, and identified the firearm.Perez was charged with possession of a firearm and ammunition while being an alien illegally and unlawfully in the U.S., 18 U.S.C. 922(g)(5). Perez unsuccessfully moved to dismiss the indictment, arguing that section 922(g)(5) on its face violated the Second Amendment by erecting a categorical bar on the possession of firearms by illegal or unlawful aliens. The Second Circuit affirmed. Assuming without deciding that, even as an undocumented alien, Perez is entitled to Second Amendment protection, 18 U.S.C. 922(g)(5), as applied to Perez, withstands intermediate scrutiny. View "United States v. Perez" on Justia Law

McCray pleaded guilty to possession with intent to distribute and distribution of fentanyl, 21 U.S.C. 841(a)(1) and (b)(1)(C), and one of two counts of possession with intent to distribute and distribution of 10 grams or more of butyryl fentanyl, 21 U.S.C. 841(a)(1) and (b)(1)(B).The Second Circuit affirmed. A substance can be an “analogue” of fentanyl for the purposes of 21 U.S.C. 841(b)(1)(B)(vi) even if it is not a “controlled substance analogue” under 21 U.S.C. 802(32). Section 841(b)(1)(B)(vi) provides fair notice that dealing in 10 grams or more of a substance that is an “analogue” of fentanyl under the ordinary meaning of the word, even if that substance is not a “controlled substance analogue,” is subject to the subsection’s enhanced penalty. The district court did not clearly err in concluding that an earlier sale was relevant to McCray’s offense conduct or in finding that the victim’s death resulted from the sale. The court did not abuse its discretion when departing upwards from the Guidelines range by 30 months based on the weight of the evidence that McCray sold the fentanyl that killed the victim. The district court appropriately applied the preponderance of the evidence standard when making factual findings at sentencing. View "United States v. McCray" on Justia Law

Rosario pled guilty to three offenses stemming from his sexual exploitation of a minor. As part of Rosario’s sentence, the district court ordered Rosario to pay a $5,000 special assessment under the Justice for Victims of Trafficking Act of 2015, 18 U.S.C. 3014(a), which requires courts tp impose the assessment on all “non-indigent” persons convicted of specified offenses.The Second Circuit affirmed, rejecting Rosario’s argument that the district court erred by considering his future earning capacity in finding him to be “non-indigent.” The court had considered Rosario’s health, outstanding debts and current assets, employment while incarcerated, “extensive prior work history,” and “transferable skills” in “basic plumbing, painting, flooring, and tile work” while noting “that [Rosario’s] felony convictions and sex-offender status will likely have an adverse effect on his employability.” The ordinary meaning of “indigent” encompasses not only a lack of present resources but also includes a forward-looking assessment of the defendant’s “means” or ability to pay. This understanding is reinforced by the statutory scheme, which provides defendants 20 years after their release to make payment. It is also consistent with precedent and the view of all six other circuits that have addressed the issue. View "United States v. Rosario" on Justia Law