Articles Posted in US Court of Appeals for the Second Circuit

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The Second Circuit affirmed defendant's 288 month sentence after he pleaded guilty for conspiracy to manufacture and distribute, and to import into the United States, five or more kilograms of cocaine. The court held principally that the district court did not err in applying the enhancement under USSG 2D1.1(b)(15)(C) to calculate defendant's Guidelines score, properly determining that defendant's drug‐related activity outside the United States constituted direct involvement in the importation of a controlled substance. In this case, the government presented sufficient evidence to show that defendant participated directly in transporting hundreds of kilograms of cocaine from South America through Honduras for Mexican drug cartels to smuggle into the United States. View "United States v. Lobo" on Justia Law

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Defendant appealed his 108 month sentence for his role in a robbery and a firearms offense. The Second Circuit held that the two level enhancement for physically restraining a person during the robbery, pursuant to USSG 2B3.1(b)(4)(B), was not validly imposed. In this case, the undisputed facts, revealed by a surveillance videotape, showed that no one was "physically restrained" within the meaning of the applicable guideline during the robbery. Accordingly, the court remanded for recalculation of the sentencing range and for resentencing. View "United States v. St. Juste (Paul)" on Justia Law

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Defendant appealed his sentence of failure to register as a sex offender in violation of 18 U.S.C. 2250, arguing that the district court modified his sentence by including in the written judgment a duty to submit to polygraph testing that was not mentioned during pronouncement of sentence. The Second Circuit remanded for entry of an amended judgment, holding that the inclusion of a duty to submit to polygraph testing was, in this case, an impermissible modification of the spoken sentence, from which those words were omitted, because polygraph testing was burdensome to defendant and not a necessary or invariable component of sex‐offender treatment. View "United States v. Washington" on Justia Law

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The Second Circuit affirmed defendant's conviction and sentence for two counts of production of child pornography and four counts of possession of child pornography. The court held that the evidence was sufficient to convict defendant; the district court did not abuse its discretion by admitting evidence of his prior conviction for Criminal Sexual Act in the First Degree; and defendant's sentence of 360 months in prison and fifteen years of supervised release was substantively reasonable. View "United States v. Spoor" on Justia Law

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Defendant, a union local president, appealed his conviction of racketeering conspiracy and Hobbs Act extortion conspiracy for his efforts to force non‐union contractors to hire union members. The Second Circuit reversed the count of conviction for Hobbs Act conspiracy, affirmed the count of conviction for racketeering conspiracy, and remanded for resentencing. The court held that an an Enmons‐like exception did not apply to New York Penal Law extortion; the wages defendant attempted to extort were "property" capable of being extorted; the district court's threat instruction was correct with respect to New York Penal Law extortion; but the Government failed to prove defendant's involvement in the charged Hobbs Act conspiracy. View "United States v. Kirsch" on Justia Law

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The Second Circuit affirmed defendant's conviction for using firearms in the commission of violent crimes. The court held that defendant's argument as to substantive Hobbs Act robbery was defeated by this court's post-Dimaya decision in United States v. Hill, 890 F.3d 51 (2d Cir. 2018), which held that substantive Hobbs Act robbery was a categorical crime of violence under 18 U.S.C. 924(c)(3)(A). Defendant's argument as to conspiratorial Hobbs Act robbery failed for two reasons: first, circuit precedent has long recognized that a conspiracy to commit a crime of violence was itself a crime of violence, and Dimaya/Johnson warranted no different conclusion; and second, in any event, the section 924(c)(3) definitions of a crime of violence applied only to the predicate offense of a crime of pending prosecution, not a crime of prior conviction as in Dimaya and Johnson. View "United States v. Barrett" on Justia Law

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Attempted robbery in the second degree under New York law is not a "crime of violence" under the "enumerated offenses" of application note 1(B)(iii) to Section 2L1.2 of the November 1, 2014 edition of the Sentencing Guidelines, but it is a "crime of violence" under the "force clause" of application note 1(B)(iii) to Section 2L1.2 of the November 1, 2014 edition of the Sentencing Guidelines. The Second Circuit affirmed defendant's sentence for illegal reentry into the United States after previously having been deported after the commission of an aggravated felony. The court held that defendant's prior New York conviction for attempted robbery was a crime of violence under the force clause. View "United States v. Pereira-Gomez" on Justia Law

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Empire a distributor of alcoholic beverages, is New York State’s exclusive distributor for popular brands like Johnnie Walker, Grey Goose, and Seagram’s Gin. Empire alleges that from 2008-2014, Reliable and (non‐party) RNDC, among Maryland’s largest liquor distributors, conspired with retail liquor stores in Cecil County, Maryland and New York City to smuggle liquor from Maryland to New York, in violation of New York liquor law. Empire sued Reliable and several Cecil County and New York retailers under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1961, alleging that their bootlegging directly harmed Empire “because every case of alcohol smuggled into New York from Maryland was a lost sale by New York’s authorized distributors.” The defendants argued that the smuggling operation did not directly cause Empire to lose sales and that Empire had not adequately alleged proximate cause under RICO. The district court dismissed the case. The Second Circuit affirmed. Empire failed to allege proximate cause adequately. Empire adequately alleged a smuggling scheme, satisfying the first element of wire fraud and satisfied the third element of wire fraud, alleging “dozens of specific wire communications allegedly made by defendants.” The Supreme Court, however, has suggested the need for skepticism “to claims brought by economic competitors” and New York State was a more direct victim of the smuggling operation. View "Empire Merchants, LLC v. Reliable Churchill, LLLP" on Justia Law

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The Second Circuit affirmed defendant's conviction under the Biological Weapons Anti-Terrorism Act of 1989 and related statutes for ordering the lethal toxin ricin over the internet for the stated purpose of facilitating murder. The court held that defendant did not stand convicted of purely local conduct so as to require construction of the Act according to principles of federalism. The court also held that defendant's conduct fell within the Act even when construed according to principles of federalism. In this case, defendant's conduct -- attempting to acquire ricin over the internet and using a false identity to have the Postal Service deliver the toxin to him -- manifests no purely local crime as in Bond v. United States, but conduct of primarily federal concern. Furthermore, Congress's enactment of the Act fell within its Commerce Clause authority and defendant's constitutional challenges failed. Finally, the court declined to review defendant's ineffective assistance claim in this appeal. View "United States v. Le" on Justia Law

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The Second Circuit affirmed defendant's conviction and sentence for conspiracy to distribute or possess with intent to distribute heroin, oxycodone, and cocaine, and distributing and possessing with intent to distribute 500 grams or more of cocaine. The court held that the police officer conducting the traffic stop had reasonable suspicion to extend the stop when defendant and the driver appeared nervous and were unable to provide information about where they were coming from; the stop did not ripen into a de facto arrest because the police officer used reasonable methods and intrusions to confirm or dispel his suspicions; and, although certain evidence was improperly seized during a frisk, the physical evidence would have inevitably been discovered and thus suppression was not warranted. The court also held that accompanying statements should have been suppressed but the error was harmless. The court found no merit in defendant's remaining challenges. View "United States v. Santillan" on Justia Law