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

Defendant pleaded guilty to unlawful possession of a firearm and ammunition after previously having been convicted of a felony. The district court determined that Defendant’s recommended range of imprisonment under the Sentencing Guidelines was 15 to 21 months. On July 7, 2021, the court nevertheless sentenced Defendant principally to an above-Guidelines sentence of 48 months of imprisonment. Defendant argued that his sentence was both procedurally and substantively unreasonable because the district court failed to adequately explain its rationale for the sentence it imposed on Defendant and because the district court’s stated justifications were insufficient to support the sentence imposed.   The Second Circuit affirmed the judgment. The court explained that to hold that Defendant’s sentence was not ultimately reasonable, the court would need to conclude that the sentence he received was “shockingly high.” Defendant argued that his sentence meets that standard because, inter alia, he had a difficult upbringing, completed many rehabilitative program hours while in prison, and does not have a lengthy history of violence. The court explained that these facts weigh in Defendant’s favor and likely were part of the district court’s reasons for not sentencing Defendant to a 70-month imprisonment term as the government requested and as Defendant received when he was convicted of the same offense in 2005. However, they are not strong enough to demonstrate that the district court abused its discretion when sentencing Defendant to a 48-month imprisonment term. Accordingly, the court concluded that the district court did not commit any plain procedural error when imposing Defendant’s sentence. View "United States v. Davis" on Justia Law

In the months following the 2020 presidential election, Defendant-Appellant threatened prominent elected officials in several posts on various social media platforms. A jury convicted Defendant of one count of threatening to assault and murder members of Congress. The district court sentenced Defendant to a prison term of nineteen months. On appeal, Defendant challenged the sufficiency of the evidence, a jury instruction, the partial closure of the courtroom due to the COVID-19 pandemic, and his sentence.The Second Circuit affirmed. The court explained that the constitutional fact doctrine’s requirement that courts “determine for themselves whether the fact-finder appropriately applied First Amendment law to the facts” is inapplicable where, as here, the First Amendment is not implicated. The court found that the evidence was sufficient to support Defendant’s conviction.   Defendant also argued that the district court violated his right to a public trial by excluding his father from the courtroom during the trial. The court explained that the Sixth Amendment guarantees defendants in a criminal prosecution the right to a public trial. However, the court reasoned as a general matter, courts may constitutionally close a courtroom under certain circumstances. Applying the relevant four-part test, the court found that the district court did not plainly err by excluding Defendant’s father from the trial courtroom.   Defendant also challenged the district court’s sentence on the ground that it improperly considered a rehabilitative purpose in sentencing him to prison. The court explained that in sentencing Defendant, the district court did not impermissibly consider rehabilitation. Rather, it considered the factors prescribed by 18 U.S.C. Section 3553(a) View "United States v. Hunt" on Justia Law

Petitioner petitioned for review of a decision of the Board of Immigration Appeals affirming the finding that he is removable on the ground that he committed a crime involving moral turpitude for which “a sentence of one year or longer may be imposed.” 8 U.S.C. Section 1227(a)(2)(A)(i). The predicate offense, a 2017 conviction for possession of a forged instrument, is a Class A misdemeanor under New York law. In 2019, after his conviction, New York enacted Penal Law Section 70.15(1-a), which lowered the maximum possible sentence for Class A misdemeanors from one year to 364 days. Petitioner asserts that because the statute is retroactive for state law purposes, his prior conviction no longer constitutes a basis for removal because it is not a crime for which “a sentence of one year or longer may be imposed,” as required by the removal statute.   The Second Circuit denied Petitoner’s petition. The court wrote that it declines to give retroactive effect to New York’s modification of its sentencing scheme for purposes of federal immigration law. The removal statute focuses on the historical fact of an alien’s prior conviction and thereby consults the state law applicable at the time of the criminal proceedings, not at the time of the removal proceedings. View "Peguero Vasquez v. Garland" on Justia Law

Defendant was arrested in the Bronx after discharging a pistol. He was subsequently indicted for one count of being a felon in possession of a firearm, to which he pleaded guilty in April 2021. The government notified Defendant just before he entered his plea that it intended to seek an enhanced mandatory minimum sentence that, it claimed, had been triggered under the ACCA by Defendant’s three prior felony convictions in New York. The district court concluded that Defendant was not a career offender under the ACCA and therefore declined to impose a sentencing enhancement sought by the government. The issue on appeal is whether Defendant’s 2014 conviction under New York Penal Law Section 220.39(1) for the sale of cocaine was for a “serious drug offense” and therefore qualifies as a predicate offense for the purposes of a sentencing enhancement under the ACCA.   The Second Circuit affirmed, holding that New York’s definition of cocaine is categorically broader than its federal counterpart, thus, Defendant’s cocaine conviction cannot serve as a predicate ACCA offense. The government argued that under Gonzalez v. Duenas-Alvarez, that even if the New York definition of cocaine is broadly construed to criminalize all its isomers, Minter must show a “realistic probability, not a theoretical possibility,” that New York’s statute is broader in practice. The court explained that here, the New York statute applies on its face to all cocaine isomers; the CSA does not. In citing Hylton, the court wrote, “When the state law is facially overbroad, we look no further.” View "U.S. v. Minter" on Justia Law

Defendant appealed from a judgment of conviction entered in district court after a jury found him guilty of two counts of conspiracy to commit honest-services wire fraud (Counts Nine and Ten), and one count of solicitation of bribes and gratuities (Count Eleven). Finding no merit in the arguments raised on appeal, the Second Circuit affirmed the judgment of the district court. Defendant then petitioned the Supreme Court for review, asking that Court to decide, as pertinent to Count Ten, whether a private citizen who has informal political or other influence over governmental decision-making can be convicted of honest services fraud. The Supreme Court reversed the court’s judgment – holding that the district court’s jury instructions, based on our decades-old decision in United States v. Margiotta, 688 F.2d 108 (2d Cir. 1982), were clearly erroneous – and remanded for further proceedings.   The Second Circuit affirmed Defendant’s convictions and sentences on Counts Nine and Eleven, vacated his conviction and sentence on Count Ten, and remanded to the district court. The court explained that although the Supreme Court held that a private citizen “nominally outside public employment” can, in certain circumstances, be convicted of defrauding the public of honest services it nonetheless concluded that the Margiotta-based jury instructions given at trial in this case were erroneous, and that “it was far from clear that the erroneous jury instructions would be harmless.” The court explained that, on remand, the government has made no argument that the instructional error was harmless. Thus vacatur of Defendant’s conviction and sentence on Count Ten is therefore warranted. View "United States v. Percoco" on Justia Law

Petitioner challenged his conviction for brandishing a firearm during and in relation to a crime of violence or drug trafficking crime. Petitioner argued that his firearms conviction cannot survive United States v. Barrett. Petitioner argued that (1) his plea allocutions did not connect the robbery conspiracy to the “separate” drug conspiracy, such that the latter cannot serve as a predicate for the Section 924(c) conviction; and (2) his arguable allocution to substantive robbery (an uncharged offense) likewise cannot predicate the gun count.   The Second Circuit affirmed. The court explained that a petitioner may seek collateral relief to challenge the constitutional validity of a guilty plea where a subsequent substantive constitutional or statutory holding creates “a significant risk that a defendant stands convicted of an act that the law does not make criminal.” The court wrote that because the government has not argued otherwise, it assumes without deciding that Petitioner has not procedurally defaulted his claim. On the merits, the court applied the new substantive rule the Supreme Court announced in Davis and that the court applied in Barrett, recognizing that a Section 924(c) conviction based on an invalid predicate is error. The court reasoned that when Petitioner admitted to brandishing a firearm in furtherance of one, he necessarily admitted to brandishing it in furtherance of the other. Accordingly, Petitioner is not entitled to collateral relief based on the fact that the Hobbs Act robbery conspiracy is no longer a valid predicate for a Section 924(c) charge. View "Tavarez v. United States" on Justia Law

Around 1:00 a.m. on October 14, 2020, New York City Police Department (“NYPD”) officers drove by Defendant near a New York City Housing Authority (“NYCHA”) complex in the Bronx. Defendant was wearing a fanny pack across his chest and standing next to a double-parked car. According to the officers, Defendant was visibly nervous when he saw them, and one officer noticed that Defendant’s fanny pack appeared to contain a bulging object with a straight line on top—the same shape as a handgun. The officers stopped and frisked Defendant and found a loaded semiautomatic pistol in the fanny pack. Defendant was arrested and charged with a violation of 18 U.S.C. Sections 922(g)(1), 924(a)(2): possessing a firearm after having been convicted of a felony. He moved to suppress the firearm, and the district court denied the motion. Defendant appealed, arguing that the stop violated his Fourth Amendment rights because the officers lacked reasonable suspicion that he was engaged in criminal activity.The Second Circuit affirmed. The court explained that the totality of circumstances in this case—including the officer’s observations of the fanny pack (as informed by his experience recovering firearms from fanny packs), Defendant’s unusual manner of wearing the fanny pack, his nervous appearance, and the late hour in a high-crime neighborhood—established reasonable suspicion. View "United States v. Hagood" on Justia Law

Defendant, a California licensed attorney, challenged (1) the sufficiency of the evidence supporting his conviction for transmitting extortionate communications in interstate commerce to sportswear leader Nike, attempted Hobbs Act extortion of Nike, and honest-services wire fraud of the client whom Defendant was purportedly representing in negotiations with Nike. Defendant further challenged the trial court’s jury instruction as to honest-services fraud and the legality of a $259,800.50 restitution award to Nike.   The Second Circuit affirmed. The court explained that the trial evidence was sufficient to support Defendant’s conviction for the two charged extortion counts because a reasonable jury could find that Defendant’s threat to injure Nike’s reputation and financial position was wrongful in that the multi-million-dollar demand supported by the threat bore no nexus to any claim of right. Further, the court held that the trial evidence was sufficient to support Defendant’s conviction for honest-services fraud because a reasonable jury could find that Defendant solicited a bribe from Nike in the form of a quid pro quo whereby Nike would pay Defendant many millions of dollars in return for which Defendant would violate his fiduciary duty as an attorney. The court further explained that the district court did not exceed its authority under the MVRA by awarding restitution more than 90 days after initial sentencing, and Defendant has shown no prejudice from the delayed award. Finally, the court wrote that the MVRA applies in this case where Nike sustained a pecuniary loss directly attributable to those crimes as a result of incurring fees for its attorneys to attend the meeting demanded by Defendant at which he first communicated his extortionate threat. View "United States v. Avenatti" on Justia Law

Defendant challenged the district court’s application of a two-level enhancement under Section 2D1.1(b)(12) of the United States Sentencing Guidelines, which applies when a defendant has “maintained a premises for the purpose of manufacturing or distributing a controlled substance.” The principal question is whether the enhancement applies to defendants who use their residence to manufacture or distribute a controlled substance.   The Second Circuit affirmed. The court explained that here, Defendant maintained an apartment where he had at one point lived for the purpose of distributing controlled substances. The court reasoned that the commentary in the Guidelines manual confirms that the district court properly applied the drug-distribution premises enhancement using a “totality of the circumstances” test, which is appropriate given the fact-intensive nature of the inquiry. Further, Defendant challenged the district court’s failure to consider a downward departure from the Guidelines sentence in order to give effect to the parties’ plea bargain. He claimed that the court misunderstood its authority to do so under United States v. Fernandez. However, the court wrote that a district court’s silence concerning its refusal to depart downward generally does not support an inference that the district court misapprehended its scope of authority. The court, therefore, rejected Defendant’s argument that his sentence was procedurally unreasonable on this ground. View "United States v. Vinales" on Justia Law

Defendants appealed from their judgments of conviction. Following a five-week jury trial, Defendants-Appellants were convicted on counts of conspiracy to tamper with witnesses and obstruct an official proceeding, substantive witness tampering and obstruction of an official proceeding, obstruction of justice, and being accessories after the fact to the deprivation of the civil rights of a victim. The district court sentenced Defendants, principally, to five years’ imprisonment each. On appeal, Defendants raised challenges to the district court’s admission of certain testimony at trial—in particular, testimony about subordinates’ fear of retaliation and testimony about bad acts that formed the basis for that fear of retaliation. Defendants also challenge the district court’s denial of their application to admit the government’s bill of particulars, and Defendant challenges the district court’s denial of his motion for an evidentiary hearing and new trial.   The Second Circuit affirmed. The court explained that the government specifically mentioned the demotion and the retirement party only once each, as examples of retaliation by the co-conspirator against an enemy. Discussion of the tasks performed by the detectives was similarly brief. These remarks by the government could have been made based only on the properly admitted testimony from other high-ranking members of the SCPD and, accordingly, could not have misled the jury. As a result, the court concluded that although the admission of cumulative evidence regarding the demotion and retirement party, and the tasks performed for the co-conspirator, was in error, it was ultimately harmless. View "United States v. McPartland, Spota" on Justia Law