DECISIONS OF THE WEEK ENDED DECEMBER 11, 2020

On Behalf of | Feb 2, 2021 | Ed Sapone’s Decisions of the Week

In a relatively quiet week, CA2’s decision in Gadsden is a reminder that the Federal judiciary continues to approve absurdly long sentences for drug offenses, notwithstanding repeated reforms with the stated purpose of reducing them.

In the state courts, AD2 reversed in two interesting street-stop suppression decisions in Soler and Tates.

Second Circuit

In United States v. Gadsden, CA2 affirmed SDNY Judge Loretta A. Preska’s order denying defendant’s motion for a reduced sentence under the First Step Act. CA2 agreed with defendant that he was eligible for relief, but found that the district court did not abuse its discretion in denying the motion for a reduced sentence.

In 2007, defendant was convicted, after a jury trial, of one count of conspiracy to distribute and possess with intent to distribute 50 grams or more of crack cocaine, and one count of distributing and possessing with intent to distribute crack cocaine. Because defendant had a prior drug felony for which the government filed a prior felony information, defendant’s conviction mandated a statutory sentencing range of 20 years to life in prison. At defendant’s sentencing hearing, then-District Judge Stephen C. Robinson found that defendant had been responsible for distributing more than 1.5 kilograms of crack cocaine and that his Guidelines called for a sentence 360 months to life in prison. Determining that a life sentence would be excessive, he sentenced defendant instead to concurrent 300-month prison terms. Following an appeal and a remand in light of the Supreme Court’s intervening decision in Kimbrough v. United States, 552 U.S. 85 (2007), and other Guidelines revisions, the court found that the Guidelines range was 210 to 262 months, rather than 360 months to life. Based on these revised Guidelines, the district court resentenced defendant to concurrent 262-month sentences.

Three months after defendant’s resentencing, President Obama signed into law the Fair Sentencing Act of 2010, which, as relevant here, increased the amount of crack required to trigger the statutory penalty range mandated by 21 U.S.C. § 841(b)(1)(A) from 50 to 280 grams. Initially, the Fair Sentencing Act’s reforms did not apply retroactively to defendants like Gadsden who had been sentenced prior to its passage, but that changed with passage of the First Step Act of 2018, which gave retroactive application to certain provisions of the Fair Sentencing Act.

Defendant moved in 2019 for a sentence reduction pursuant to the First Step Act. The government argued that defendant was not eligible for relief because the penalties for defendant’s offense had not been modified as the 1.5 kilograms attributed to him at sentencing exceeded even the new 280-gram threshold. The government argued in the alternative that, regardless of defendant’s eligibility, his motion should be denied as a matter of the court’s discretion.

Judge Preska declined to rule on the eligibility question, and instead found that, as a matter of discretion, because defendant had a history of violence that offset his exemplary conduct while in prison, and his sentence was already substantially below the guidelines, a lower sentence was not warranted.

On appeal, the government conceded that defendant was eligible for resentencing in light of CA2’s intervening decision in United States v. Davis, 961 F.3d 181, 183 (2d Cir. 2020). But CA2 found that Judge Preska’s denial of resentencing was not an abuse of discretion. While Judge Preska had not discussed every § 3553(a) factor individually, nothing in the record suggested that she overlooked relevant information. Nor was defendant entitled to a hearing on his motion. CA2 found that a defendant bringing a First Step Act motion is not entitled to a plenary resentencing hearing at which he has the right to be present.

CA2’s decision can be found here.

In United States v. Williams, in a summary order, CA2 affirmed defendant’s NDNY conviction for distribution of child pornography and the 240-month sentence imposed, but vacated the special condition of supervised release that imposed a lifetime ban on defendant’s access to sexually explicit material, including legal adult pornography, as overbroad, and remanded for the court to revise this condition.

CA2 found that the district court did not adequately support its imposition of a lifetime prohibition on defendant’s access to otherwise legal adult pornography. The district court did not explain why such a ban was reasonably related to the sentencing factors set forth in 18 U.S.C. § 3553(a), as required. Nor did it explain why the special condition imposed no greater deprivation of liberty than was reasonably necessary. Nor was the rationale for a lifetime ban on all sexually explicit material, including otherwise legal adult pornography, self-evident from the record.

CA2’s decision can be found here.

In United States v. Legree, in a summary order, CA2 affirmed defendant’s EDNY felon in possession conviction and the 57-month sentence imposed by Judge Dora L. Irrizarry, as well as the consecutive 24-month sentence for violating the terms of defendant’s supervised release for a prior felon-in-possession conviction, finding that the sentences were not substantively unreasonable.

Although defendant’s 57-month sentence fell at the low end of the applicable Guidelines range of 57–71 months, defendant contended that it violated the parsimony clause of § 3553(a). Even though the government had stated at sentencing that a 15-21-month sentence would have been appropriate (based on an error in the plea agreement), CA2 found that the sentence was not substantively unreasonable given defendant’s extensive criminal history, the danger he posed to the public, and his demonstrated propensity to reoffend after being given an opportunity for rehabilitation. Nor was the 24-month sentence for violating the terms of his supervised release substantively unreasonable, even though it fell well above the guidelines range of 8-14 months. CA2 found that the consecutive term was warranted as punishment for defendant’s breach of trust, and not merely retribution for new criminal conduct that was separately punished.

CA2’s decision can be found here.

In United States v. Jagana, in a summary order, CA2 affirmed defendant’s SDNY convictions for conspiracy to commit passport fraud and wrongful delivery of a passport, after a jury trial before Judge Jed S. Rakoff. CA2 rejected defendant’s contention that the court wrongfully excluded impeachment evidence that defendant asked to use against a prosecution witness.

Defendant sought to impeach one of the prosecution’s central witnesses with portions of a video deposition. At the deposition, the witness admitted to having lied in multiple visa applications prior to her 2015 arrival and admitted to having used a fraudulent passport arranged by defendant for her 2015 trip to the United States. Those portions of the video deposition were shown to the jury.

Defendant also sought to impeach the witness about one of the grounds the witness had used in her asylum application. In the deposition, the witness confirmed that she had told authorities that she was fleeing Gambia to avoid an arranged marriage to an older man and feared that her parents would beat her if she refused to go through with the marriage. But she admitted that those initial statements were not accurate, to the extent she feared physical violence. The district court excluded this means of impeachment. CA2 found no abuse of discretion. While the witness may have used stronger language in 2015 to describe the pressure she felt to comply with her parents’ wishes, the language was not necessarily contradictory.

CA2’s decision can be found here.

In United States v. Angwang, in a summary order, CA2 affirmed the order of EDNY Judge Eric R. Komitee that had denied defendant’s motion for bail.

Defendant was alleged to have acted as an unregistered agent of the People’s Republic of China (PRC) by communicating with a PRC official while serving as an NYPD officer. The district court denied bail on the ground that “no condition or combination of conditions w[ould] reasonably assure the appearance of” defendant as required.

Defendant argued on appeal that the district court committed legal error by considering the complaint’s allegations as part of its evaluation of his “history and characteristics” under 18 U.S.C. § 3142(g)(3), because it should not have relied on the complaint to find that he had a “demonstrated capacity for dishonesty,” essentially “double-counting” the nature-of-the-offense. CA2 found that the district court did not primarily rely on the complaint’s allegations to find that defendant had a history of dishonesty. Although the district court did discuss the complaint’s allegations in its analysis, it followed this discussion with an explicit note that “[t]hese allegations of deceit are, of course, contested at this stage,” and then considered indications that defendant had not been candid with the court.

While CA2 agreed that there were “weighty issues” surrounding the question of whether the government would seek to denaturalize defendant, and how that possibility factored into the question of bail, CA2 declined to reach them because the overall assessment of risk of flight was supported by the record and not clearly erroneous.

CA2’s decision can be found here.

Appellate Division, First Department

In People v. Joseph, AD1 reversed defendant’s New York County burglary in the second degree as a sexually motivated felony conviction finding that defendant was induced to plead guilty based on an erroneous understanding of the sentencing range he faced if convicted after trial.

Defendant faced an aggregate sentence of 45 years if convicted after trial of three burglaries with which he was charged in Manhattan and Brooklyn. By operation of Penal Law § 70.30(1)(e)(i), that aggregate sentence would have been automatically reduced to 20 years. But in inducing defendant to plead guilty to the Manhattan burglary charges, with an aggregate sentence of 10 years, and a promise that the sentence would run concurrently with the sentence on his Brooklyn case, the court repeatedly told defendant that he faced a possible sentence of 45 years, without mentioning that defendant’s sentence would ultimately be reduced to 20 years. AD1 found that this information rendered defendant’s guilty plea unknowing and involuntary.

AD1’s decision can be found here.

Appellate Division, Second Department

In People v. Diaz, AD2 affirmed defendant’s Kings County course of sexual conduct against a child and endangering the welfare of a child convictions but reduced the sentence as unconstitutionally vindictive.

Defendant was alleged to have sexually abused complainant, his step granddaughter. Following a jury trial, defendant was convicted and sentenced to a determinate term of 5 years’ imprisonment plus 10 years’ of post-release supervision on the course of sexual conduct count, and 1 year of imprisonment on the endangering the welfare of a child count, to run concurrently with each other.

On an initial appeal, NYCA reversed and sent the case back for a new trial. Defendant was convicted again. The court imposed a longer six-year sentence following the retrial. AD2 found the sentence unconstitutionally vindictive, because the additional one year added to the sentence was essentially a punishment for going back to trial, unsupported by any other appropriate sentencing consideration. That defendant continued to maintain his innocence did not warrant a longer sentence.

AD2’s decision can be found here.

In People v. Soler, AD2 reversed defendant’s Kings County attempted criminal possession of a weapon conviction, finding that Supreme Court erroneously denied defendant’s motion to suppress a firearm recovered following a street encounter.

The evidence at the suppression hearing showed that police officers conducting a street narcotics enforcement operation stationed at an observation post saw defendant standing near a car. An officer testified that there was “something heavy on one of the sides” of the defendant’s sweatshirt pocket, which caused the pocket to “sag[ ],” and that he believed the object was a gun. The officer radioed this information to a second officer who was stationed in an unmarked car parked near where defendant had been standing beside the car. Defendant entered the car and drove away, followed by the second officer in the unmarked car. When the defendant stopped his car, the second officer stopped behind the defendant’s car. Both the defendant and the second officer exited their cars at the same time and faced each other. The second officer testified that the defendant had his hands “[a]t his side,” and that he saw a heavy, L-shaped object in the defendant’s front sweatshirt pocket, which he believed to be a gun. The second officer approached the defendant and said something along the lines of “what’s this or what is that,” and “reached” for the item in the defendant’s sweatshirt pocket, but before the officer made contact with the pocket, the defendant fled the scene, and discarded a gun in the course of his flight.

Supreme Court found that the officer was permitted to touch the L-shaped bulge in defendant’s sweatshirt pocket as a “self-protective minimal intrusion within the scope of a common-law inquiry,” and denied that branch of the defendant’s omnibus motion which sought to suppress physical evidence.

AD2 disagreed. It found that the officer was justified in conducting a common-law inquiry, and the officer was permitted to ask the defendant if he was carrying a weapon. But the officer was not justified in attempting to touch the defendant’s sweatshirt pocket as a minimally intrusive self-protective measure, since the defendant did not engage in any conduct justifying that intrusion. The defendant’s response of fleeing and discarding the gun was not “an independent act involving a calculated risk attenuated from the underlying [illegal] police conduct.” The weapon, therefore, should have been suppressed.

AD2’s decision can be found here.

In People v. Tates, AD2 vacated defendant’s Queens County CPW2 conviction, finding that Supreme Court erroneously denied defendant’s motion to suppress a handgun following a street stop.

The evidence at the suppression hearing showed that three police officers observed a man named Foreman engage in an altercation with a bouncer at a nightclub. The officers heard Foreman tell the bouncer that he had a “grip,” or gun, in his car, and that he would “take [the bouncer] out.” The officers followed Foreman to an SUV that was owned by defendant. After observing Foreman close the door of the defendant’s SUV, they confronted Foreman as the defendant and another man arrived at the SUV. According to the officers, the three men began to make a scene, resulting in a large, unruly crowd gathering at the location. The officers then attempted to arrest the men for disorderly conduct. The defendant pushed against an officer, pulled away from his grasp, and fled, but was quickly apprehended nearby. The defendant’s SUV was driven back to the precinct, where a gun subsequently was found in the trunk area.

At the close of the hearing, the People argued that the gun was properly recovered pursuant to an inventory search. The Supreme Court determined that the police seizure of the defendant’s SUV was unlawful, thereby necessarily rendering any inventory search conducted at the precinct improper, but nevertheless determined that the police had probable cause to search the SUV for a gun pursuant to the automobile exception to the search warrant requirement, a legal theory that was neither advanced nor relied upon by the prosecution at the suppression hearing. After a jury trial, the defendant was convicted of criminal possession of a weapon in the second degree and resisting arrest.

AD2 agreed with defendant that the Supreme Court erroneously denied the motion to suppress the gun recovered from his SUV. The People’s appellate contention that the search of the defendant’s SUV was proper under the automobile exception to the warrant requirement because the police had probable cause to believe that the SUV contained a weapon was improperly raised for the first time on appeal. The prosecutor at the suppression hearing affirmatively conceded that the police lacked probable cause either to arrest the defendant for weapon possession at the scene or to search his vehicle for a weapon, and that the People were relying solely on the theory that the gun was recovered pursuant to a lawful inventory search after the SUV was removed from the location.

AD2 was not permitted to reach the alternative ground for upholding the suppression ruling, based on the People’s argument, which was raised in Supreme Court, that the recovery of the gun was lawful pursuant to a valid inventory search, because the Supreme Court decided the inventory search issue in the defendant’s favor. People v. LaFontaine, 92 N.Y.2d 470 (1998). AD2 remitted back to the Supreme Court to address that issue.

AD2’s decision can be found here.

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