Ed Sapone’s DECISIONS OF THE WEEK-May 11, 2019

| May 11, 2019 | Ed Sapone’s Decisions of the Week

This was a routine week. The Second Circuit rejected defendant’s contention that a NY state court burglary conviction is not a crime of violence in a precedential decision in Evans. Also, among its summary orders, the Circuit found in James that a district court’s sentence was procedurally unreasonable because the court erred in calculating the applicable sentencing guidelines range for defendant’s acceptance of responsibility and failed to state in open court the reasons for the sentence imposed. Further, in Smith, the Circuit remanded for the district court to reconsider two special conditions of supervised release: one that required her to undergo periodic drug testing and treatment, and another that prohibited her from consuming alcohol.

Most notable among state court decisions were three from the Court of Appeals, which limited the availability of the justification defense in Brown, Vega, and Rkein.

Second Circuit

On Wednesday, in United States v. Evans, the Circuit affirmed the WDNY judgment sentencing defendant to 180 months of imprisonment. The Circuit rejected defendant’s contention that he should not have been subject to the Armed Career Criminal Act’s 15-year mandatory minimum sentence for felons in possession of a firearm with three prior “violent felony” convictions, because his North Carolina burglary and federal bank robbery convictions were not violent felonies.

In 2011, defendant pleaded guilty to being a felon in possession of a firearm. ACCA provides that a person who has three previous convictions for a “violent felony” shall be imprisoned for a minimum of 15 years. Defendant acknowledged in his written plea agreement that he qualified as an armed career criminal based on three prior violent felony convictions, subjecting him to a 15‐year mandatory minimum sentence. The district court sentenced him to 180 months of imprisonment in 2012.

In 2016, defendant moved for resentencing asserting that he was not subject to the mandatory minimum because the Supreme Court had struck down the ACCA’s residual

clause in Johnson v. United States, 135 S.Ct. 2551 (2015). The district court agreed, but transferred the case to the original sentencing judge to determine whether any of defendant’s prior convictions could be substituted.

The original sentencing judge found that at least three offenses qualified as “violent felonies” under ACCA, such that defendant continued to face a mandatory minimum sentence of 15 years. First, defendant was convicted in 1982 of federal bank robbery in violation of 18 U.S.C. § 2213(a). Second, defendant was convicted of federal armed bank robbery in violation of 18 U.S.C. § 2113(d). Third, defendant was convicted in 2001 in North Carolina of second‐degree burglary.

The Circuit agreed. The NC burglary offense was a crime of violence under the ACCA’s “enumerated clause” under the categorical approach. To qualify categorically, a state burglary offense must require (1) the unlawful or unprivileged entry (2) into a dwelling (3) with the intent to commit a crime. North Carolina’s second-degree burglary sufficed, even though it included a mobile home adapted or customarily used for lodging.

Same, too, for the federal crime of bank robbery, under the ACCA’s “elements clause.” The Circuit rejected defendant’s argument that federal bank robbery does not categorically qualify as a crime of violence under ACCA’s elements clause because the offense “encompasses ‘intimidation’ and ‘extortion’ as ‘means’ by which the offense can be accomplished.” First, bank robbery “contains at least two separate offenses, bank robbery and bank extortion.” Because defendant was convicted of bank robbery—Congress amended the statute after his conviction to include bank extortion—the Circuit did not need to decide whether bank extortion qualified as a crime of violence. Second, bank robbery “by intimidation” is categorically a crime of violence, because taking “by intimidation” involves the threat to use of physical force.

The Circuit’s decision can be found here.

On Friday, in United States v. Lopez, in a summary order, the Circuit affirmed the SDNY judgment convicting defendant of conspiracy to commit Hobbs Act robbery, and the four-year sentence imposed by Judge Richard J. Sullivan. The Circuit rejected defendant’s contention that Judge Sullivan committed procedural error by sua sponte imposing a five-point enhancement for brandishing or possessing a firearm.

Defendant argued that Judge Sullivan committed procedural error when it failed to make a particularized factual finding that brandishing or using a firearm was within the scope of his criminal agreement or that possession of a firearm by a co-conspirator was reasonably foreseeable. Rejecting defendant’s contention, the Circuit found both that the Judge Sullivan sufficiently particularized his finding that (1) the conspirator’s conduct was within the scope of the defendant’s criminal agreement and (2) the co-conspirator’s conduct was reasonably foreseeable to the defendant.

The Circuit’s decision can be found here.

On Tuesday, in United States v. James, in a summary order, the Circuit remanded defendant’s appeal for further proceedings, agreeing with defendant that the 108-month sentence imposed by EDNY Judge Sterling Johnson, Jr. for conspiring to import cocaine and launder money and failing to appear, may have been procedurally unreasonable because Judge Johnson may have erred in calculating the applicable guidelines range for defendant’s acceptance of responsibility. Also, Judge Johnson failed to state in open court the reasons for the sentence imposed on the conspiracy counts.

The Circuit found that the record lacked sufficient explanation as to:

  • why Judge Johnson denied an adjustment for acceptance of responsibility;
  • whether Judge Johnson considered the apparent sentencing disparity between defendant and his co‐conspirators who received considerably more lenient sentences (including time-served sentences in some instances) despite higher guidelines ranges; and
  • why Judge Johnson declined to grant defendant a downward variance in light of “all of the circumstances” and his ʺhistory and characteristics.ʺ

 

The Circuit’s decision can be found here.

In United States v. Glass, in a summary order, the Circuit affirmed the judgment convicting defendant of possession of ammunition by a convicted felon and the whopping 120-month prison sentence imposed by SDNY Judge Richard J. Sullivan. The Circuit rejected defendant’s argument that the sentence, imposed following his guilty plea, which was the statutory maximum term and an upward variance from the guidelines range of 84 to 105 monthsʹ imprisonment, was procedurally and substantively unreasonable.

The Circuit also rejected defendant’s procedural reasonableness challenge that Judge Sullivan erred in concluding that his NY first-degree robbery conviction was not a crime of violence, because it was foreclosed by the Circuit’s prior contrary decision in United States v. Moore, 916 F.3d 231 (2d Cir. 2019).

Finally, the Circuit rejected defendant’s substantive reasonableness challenge, even though it was the maximum and exceeded the guidelines range by 15 months. In the Circuit’s view, the sentence was necessary to “specifically deter” defendant, who had, among other things, discharged a firearm five times in a densely populated area while on state parole, and had two prior robbery convictions, one of which involved a brutal assault.

The Circuit’s decision can be found here.

On Wednesday, in United States v. Smith, in a summary order, the Circuit vacated in part the NDNY judgment convicting defendant of Social Security fraud, and sentencing her to a 14-month prison term with three years of supervised release, to the extent of remanding to the district court to reconsider two special conditions of supervised release: one that required her to undergo periodic drug testing and treatment, and another that prohibited her from consuming alcohol.

The Circuit found that the district court did not make the required individualized assessment when determining to impose these conditions, instead stating only that it found the conditions “necessary and justified in this case based on your offense and your history, your characteristics.” Further, the district court’s reasoning for imposing the special conditions was not “self-evident in the record.”

The Circuit’s decision can be found here.

In United States v. Pasley, in a summary order, the Circuit affirmed the SDNY judgment convicting him of racketeering conspiracy, and the 108-month prison sentence imposed by Judge Lewis A. Kaplan. The Circuit rejected defendant’s arguments that the government breached the plea agreement and that the sentence was procedurally unreasonable.

The plea agreement calculated a guidelines range of 97‐121 months of imprisonment, based on a base offense level of 29 and Criminal History Category II. Although the PSR also calculated the base offense level as 29, it concluded that defendant should be in CHC III because of a youthful offender robbery conviction that was not referenced in the plea agreement. Accordingly, the PSR calculated defendant’s guidelines range as 108‐135 months of imprisonment. In its sentencing memorandum and at sentencing, the government did not advocate for either guidelines range, but argued that a sentence of 108‐121 months was appropriate. The district court adopted the PSR’s guidelines range of 108‐135 months, and sentenced defendant to 108 months’ imprisonment.

Defendant argued on appeal that the government breached the plea agreement by advocating for a sentence of 108‐121 months. The Circuit disagreed, finding that the agreement explicitly permitted the government to advocate for any sentence within the stipulated guidelines range of 97‐121 months, when it stated, “nothing in this Agreement limits the right of the parties . . . to make any arguments regarding where within the Stipulated Guidelines Range (or such other range as the Court may determine) the defendant should be sentenced and regarding the factors to be considered in imposing a sentence….”

The Circuit’s decision can be found here.

On Thursday, in Superville v. United States, the Circuit affirmed the order of EDNY Judge Jack B. Weinstein, following an evidentiary hearing, that had denied defendant’s § 2255 petition. The Circuit found that the petition was untimely and that defendant failed to show that counsel had provided misadvice about the immigration consequences of this conviction.

On the issue of timeliness, the Circuit found that the one-year limitation period began to run on November 28, 2014, the date the conviction became final. The Circuit rejected defendant’s contention that the period should be extended because he could not, with due diligence, have discovered the basis for his claim until he was arrested by Immigration authorities on July 18, 2017. Defendant had received at least three warnings of his pleaʹs immigration consequences, including the written plea agreement that stated that removal would be “presumptively mandatory.”

The Circuit found that, even if defendant’s petition were timely, it would fail on the merits. Defendant contended that counsel incorrectly told him that, if he pleaded guilty, he could be deported, rather than that deportation would be mandatory, because he was pleading guilty to a drug-trafficking offense. The Circuit agreed with Judge Weinstein that, even assuming counsel was ineffective for saying “could” rather than “would,” defendant failed to show that a stronger warning would have led him to reject the plea and go to trial.

The Circuit’s decision can be found here.

New York Court of Appeals

On Tuesday, in People v. Towns, in an opinion by Judge Stein, NYCA reversed defendant’s Monroe County first-degree robbery conviction, finding that defendant was denied a fair trial when the trial court negotiated and entered into a cooperation agreement with a codefendant requiring co-defendant to testify against defendant in exchange for a more favorable sentence. NYCA found that the trial court abandoned the role of a neutral arbiter and assumed the function of an interested party, creating a specter of bias that required reversal.

NYCA’s decision can be found here.

In People v. Brown, in an opinion by Judge Wilson, NYCA affirmed defendant’s Bronx County murder conviction, agreeing with the trial court that no reasonable view of the evidence warranted a justification charge.

The evidence showed that defendant shot and killed Cabbagestalk in the lobby of defendant’s apartment building after an argument. Defendant’s shooting of Cabbagestalk self-evidently constituted the use of deadly physical force. NYCA found that, even fully crediting the defense’s lead witness’s testimony, it was uncontested both that Cabbagestalk was unarmed and that Cabbagestalk swiped at defendant’s gun only after defendant wielded it. Even if someone is the initial aggressor with respect to mere physical force, another person may be the initial aggressor with respect to deadly physical force. If mere physical force is employed against a defendant, and the defendant responds by employing deadly physical force, “the term initial aggressor is properly defined as the first person in the encounter to use deadly physical force.”

NYCA found that, on the facts of this case, taken in the light most favorable to defendant, the trial court’s refusal to charge justification was not error, because defendant was the initial aggressor as a matter of law.

NYCA’s decision can be found here.

In People v. Vega, in a memorandum decision, NYCA affirmed defendant’s NY County assault convictions. NYCA found that the court’s instruction that, if the jury found that defendant used a dangerous instrument, then it should apply the legal rules pertaining to the use of deadly physical force, was not error. NYCA found that it would be the rare case—particularly where, as here, the charge is assault in the second degree—where a defendant would be entitled to a jury instruction on the justified use of non-deadly (or “ordinary”) physical force, even though the defendant is charged with a crime containing a dangerous instrument element.

NYCA’s decision can be found here.

In People v. Rkein, in a memorandum decision, NYCA affirmed defendant’s NY County second-degree assault conviction, finding that the court correctly denied a justification instruction. NYCA found that the trial court appropriately determined that, if the jury convicted defendant of second-degree assault by means of a dangerous instrument, it necessarily determined that defendant employed deadly, rather than ordinary, physical force by striking the complainant on the head with a pint glass. It also found that, because defendant could not have reasonably believed that the complainant was using or about to use deadly physical force, he was not entitled to a deadly force justification charge.

NYCA’s decision can be found here.

Myers, in a memorandum decision, NYCA affirmed defendant’s Nassau County second-degree robbery and assault convictions. NYCA found that the existence of a jury note in the Supreme Court file did not warrant automatic reversal under the O’Rama rule, and that a reconstruction hearing was the appropriate remedy to assess whether O’Rama had been complied with, because “[s]ignificant ambiguity existed in the record concerning the circumstances in which the exhibit was marked and entered into the court file, including ambiguity as to whether the jury sent the exhibit to the court or, instead, began drafting it but discarded it in favor of sending other, substantially similar notes.”

NYCA’s decision can be found here.

Appellate Division, First Department

On Tuesday, in People v. Peralta, AD1 reversed defendant’s Supreme Court, NY County assault in the second degree conviction, finding that defendant was entitled to a new trial because the court provided written instructions to the jury, at its request, but over defendant’s objection.

AD1’s decision can be found here.

Appellate Division, Second Department

On Wednesday, in People v. Walters, AD2 reversed defendant’s Queens County second-degree burglary conviction. AD2 found that the court erroneously altered its pretrial Sandoval ruling after defendant had taken the stand and testified in his own defense, and that defendant had not opened the door to questioning about the specific facts of his prior burglary conviction, which had been precluded in the pretrial Sandoval ruling.

AD2’s decision can be found here.

Warm regards, Edward V. Sapone Sapone & Petrillo, LLP

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