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As Second Circuit Remands on Procedural Reasonableness Grounds, Judge Calabresi Calls for More Searching Review of Obstruction of...

In United States v. Pugh, No. 17-1889 (2d Cir. Dec. 10, 2019, as amended) (Calabresi, Droney, Underhill, by designation), the Second Circuit affirmed a defendant’s convictions for attempting to provide material support to a...more

Second Circuit Grants Rehearing and Vacates Guilty Plea Following Supreme Court’s Decision in Rehaif v. United States

On November 13, 2019, the Second Circuit (Hall, Lynch, Gardephe) issued a decision in United States v. Balde, vacating the defendant’s guilty plea for unlawful possession of a firearm by an alien who is in the United States...more

Circuit Remands Case For Limited Remand To Determine Whether The Delay In Obtaining A Search Warrant Rendered The Warrant...

In a recent summary order in United States v. Smith, 17-2446, the Second Circuit (Katzmann, Kearse, Meyer by designation) remanded a case for additional fact-finding on a narrow issue relating to the duration of the time it...more

Galanis Appeal Leads To Limited Remand To Determine Whether Counsel Was Ineffective

The appeal in United States v. Galanis, 17-629 (Sack, Parker, Chin) resulted in a limited remand in a summary order so that the district court can determine whether there was ineffective assistance of counsel. The facts of...more

Circuit Holds That Pending State Counts Qualify as “Anticipated” Sentence for Purposes of Sentencing Guidelines on Concurrent...

Is a term of imprisonment “anticipated” if charges are pending but the defendant has not yet pled or been found guilty? In a per curiam decision, United States v. Olmeda, No. 15-3449 (Katzmann, Leval, and District Judge...more

Circuit Vacates Child Pornography Sentence For Second Time, Citing District Court’s Failure to Follow Circuit’s Mandate

On June 19, 2018, in a split decision in United States v. Sawyer, No. 15-2276 (Jacobs, Pooler, Crawford) the Circuit issued a firm rebuke of a District Court judge who – per the Circuit’s mandate – reduced the defendant’s...more

No Shortcuts: District Court Must Calculate Guidelines Range Before Ruling on Sentencing Reduction Motion

In United States v. Brooks, the Court (Leval, Pooler, Hall) reiterated that district courts are required to calculate the applicable Sentencing Guidelines range when faced with a § 3582(c)(2) motion for a sentence reduction,...more

Second Circuit Remands Ineffective Assistance Claim for Lawyer’s Failure to Apprise Naturalized U.S. Citizen of Denaturalization...

In Rodriguez v. United States, the Second Circuit remanded the case to the district court to hear evidence on a defendant’s application to vacate her guilty plea, on the grounds that she would not have entered into the plea...more

Second Circuit Continues To Give A Close Look To Supervised Release Conditions

In a recent nonprecedential summary order, the Second Circuit (Winter, Lynch, Chin) vacated and remanded a sentence due to a condition of supervised release that prohibited the defendant from having unsupervised contact with...more

Circuit Vacates Sentence for Failure to Correctly Apply Acceptance-of-Responsibility Guideline

In a summary order on January 2, 2018 in United States v. Reyes, the Court (Winter, Lynch, Droney) vacated and remanded a life sentence as procedurally unreasonable on the ground that the district court failed to properly...more

Second Circuit Remands for New Trial Based on District Court’s Improper Exclusion of Advice-of-Counsel Testimony

In United States v. Scully, 16-3073-cr (Pooler, Lynch, Cogan[1]), the Second Circuit vacated the defendant’s conviction for various offenses, including mail and wire fraud, conspiracy to defraud the United States, the sale of...more

Circuit Remands Restitution Order for Further Consideration of Indigent Defendant’s Right to Counsel and Application for Expert...

In United States v. Torriero, the Second Circuit (Chin, Droney, Restani by designation) vacated by summary order a $765,561 restitution order relating to costs incurred by the EPA in cleaning up a property that the defendant...more

Second Circuit Remands for Resentencing to Consider Role Reduction under Amendment 794

On September 11, 2017, the Second Circuit (Parker, Carney, Stanceu) reversed by summary order the sentence of the defendant in United States v. Soborski (16-cr-3369). The panel remanded the case to the U.S. District Court...more

In 2-1 Decision, Second Circuit Vacates Child Pornography Sentence as Substantively Unreasonable

For the third time in the past year, the Second Circuit in United States v. Jenkins, No. 14-4295 (Kearse, Jacobs, Parker), has vacated as substantively unreasonable a sentence imposed under the sentencing guideline for child...more

This Is Not Fine: Circuit Vacates Fine Imposed on Unable-to-Pay Defendant, Citing Lack of Reasoning or Evidence for Judge’s...

In a summary order issued March 7, 2017, United States v. Marmilev, 14-4738 (Leval, Calabresi, and Carney), the Circuit vacated and remanded the portion of the defendant’s sentence imposing a $250,000 fine after the defendant...more

Return to Sender: Aéropostale Employee’s Fraud Convictions Affirmed, But Restitution Order Sent Back for Recalculation

Aéropostale is known by many as a staple of adolescent wardrobes and shopping-mall standard. But as a patsy for kickback schemes? In United States v. Finazzo, 14-3213-cr, 14-3330-cr (Droney, J., joined by Judges Sack and...more

In Summary Order, Second Circuit Provides Guidance to Courts Deciding Motions for Sentence Reductions

On February 16, 2017, the Second Circuit (Leval, Calabresi, Carney) issued a summary order in United States v. Lopez, No. 16-1019, vacating and remanding for reconsideration the district court’s denial of the appellant’s...more

In Summary Order, Court Vacates Above-Guidelines Sentence for Lack of Justification, But Denies Request to Remand to Different...

Franco Lupoi was sentenced to 156 months on money laundering conspiracy and heroin trafficking conspiracy charges, in excess of the applicable Guidelines range and the 135 month sentence requested by the government. In its...more

In Summary Order, Court Vacates Denial of Resentencing Motion, Citing Ambiguities in the Sentencing Record

On January 31, 2017, the Court (Katzmann, Kearse, Livingston) issued a nonprecedential summary order vacating and remanding an order denying a motion for resentencing in United States v. Majors, No. 15-4022. The remand was...more

In Summary Order, Court Remands Obstruction Enhancement for Further Findings of Fact

In a summary order issued yesterday in United States v. Munteanu, No. 16-1254, the Second Circuit (Winter, Cabranes, Lynch) reiterated that a district court must make findings of fact before imposing an obstruction of justice...more

Second Circuit Parses Distinction Between “Based on” and “Applicable to” in Context of Sentence Reductions for Retroactive...

In United States v. Leonard, No. 15-22-32-cr (December 14, 2016) (Raggi, Chin, Droney), the Second Circuit vacated and remanded an order finding a defendant ineligible for a sentence reduction based on a retroactive amendment...more

In A Summary Order, Second Circuit Vacates 30-year Child Pornography Sentence on Substantive Reasonableness Grounds

In United States v. Sawyer, No. 15-2276, the Second Circuit (Jacobs, Pooler, Crawford) vacated and remanded for resentencing a case involving a conviction for possession of child pornography. The decision rested on a finding...more

Food For Thought: Court of Appeals Questions Relevance Of Guidelines To Case Of Fraud Involving Supplemental Nutrition Assistance...

In United States v. Algahaim, No. 15-2024(L), the Second Circuit (Newman, Winters, Cabranes) upheld the conviction of two defendants for misconduct involving the Supplemental Nutrition Assistance Program (“SNAP”), but...more

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