Not sure why United States v. Antonio Ortiz, 2d Cir. No. 22-1775-cr (April 30, 2024), is a published opinion rather than a summary order. Judge Menashi’s opinion for the panel (Calabresi, Menashi, Perez) rejects Ortiz’s challenge to his five-year sentence, imposed upon revocation of supervised release after the district court found that he raped his teenage daughter on several occasions. The issues are fact-specific. Two are worth noting. First, although the Circuit generally declines to address an IAC claim raised for the first time on direct appeal, it will decide the issue when “the record ..read more

In United States v. Maalik Alim Jones, 2d Cir. No. 22-2958-cr (April 29, 2024), the panel (Walker, Park, Perez) in a per curiam opinion rejects Jones’s challenge to his 25-year sentence, imposed on remand after a prior appeal and following Jones’s guilty plea under a new plea agreement in which he waived the right to appeal “any sentence” of 300 months or lower. Jones is an American citizen who moved to Somalia and joined al-Shabaab, “an Islamic terrorist organization.” Op. 3. He pleaded guilty to various offenses based on the group’s murderous attacks in Kenya and Somalia. Most of the issues ..read more

In United States v. McIntosh, No. 22-7386 (U.S. Apr. 17, 2024), a unanimous Supreme Court held that a district court’s failure to enter a preliminary order of forfeiture prior to sentencing, as required by Fed. R. Crim. P. 32.2(b)(2)(B), “does not bar a judge from ordering forfeiture at sentencing subject to harmless-error principles on appellate review.” McIntosh participated in a series of Hobbs Act robberies. During one of them, he took $70,000 in cash, and used part of that sum to buy a BMW. He was indicted for several counts of Hobbs Act robbery and corresponding 18 U.S.C. § 924(c) offens ..read more

Yes, the Second Circuit means it! If the district court doesn’t explain why a special condition of supervised release is required in a particular case, the Circuit will vacate the condition. Today, yet again, the Second Circuit vacated a condition of supervised release because the district court did not explain the reasons for imposing the condition or make an individualized assessment it was necessary for Mr. Syed. In Mr. Syed’s case the vacated condition was broad electronic and GPS monitoring, without any reasonable suspicion required. In that way Syed is a lot like United States v. Salazar ..read more

In two recent decisions, the Second Circuit reiterated the requirements for imposing special conditions of supervised release: a sentencing court must undertake an “individualized assessment” of the defendant and “state on the record the reason for imposing” any special condition. The failure to do so is error. In United States v. Alex Oliveras, No. 21-2954, — F.4th — (2d Cir. March 15, 2024), the Circuit vacated a special condition allowing the federal probation officer to conduct suspicionless searches of the defendant and his property. The defendant argued, first, that this special conditio ..read more

Under 18 U.S.C. § 3553(f), the so-called “safety valve” provision, district courts have a limited power to impose a sentence below the statutory mandatory minimum in certain drug cases. The defendant’s offense must not involve particular aggravating factors (violence, guns) and the defendant must have a limited criminal history. But how limited? The 2018 First Step Act expanded this provision to apply to any defendant who “does not have– (A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guideline ..read more

In United States v. Delvalle, No. 22-1539-cr (2d Cir. Mar. 5, 2024) (per curiam), the Court reiterated its longstanding rule that a guilty plea is not rendered involuntary or unintelligent simply because the defendant expected to receive a lower sentence than he ultimately received. Delvalle pleaded guilty to a drug conspiracy. The parties estimated that his Guidelines range was 360-480 months, with a statutory minimum term of 60 months. During the plea colloquy, the defendant acknowledged that he had not been “promised” a below-Guidelines sentence, but nevertheless thought it was a ..read more

In United States v. Cory Johnson, 2d Cir. No. 22-1086-cr (February 27, 2024), the panel (Livingston, Carney, Bianco) rejects Johnson’s claims and affirms his conviction and 20-year sentence for producing child pornography (CP) in violation of 18 U.S.C. § 2251(a). The opinion, by Chief Judge Livingston, concludes that the instant prosecution for CP production – which follows Johnson’s 2019 conviction for CP possession, after a guilty plea pursuant to a plea agreement– is not barred by the prior agreement. The opinion also rules that the evidence leading to the production charge, discovered duri ..read more

In United States v. Morgan, No. 22-2798 (2d Cir. February 23, 2024), the Circuit (Parker, Lynch and Khan) affirmed, in a summary order, the defendant’s conviction for being a felon in possession of ammunition based on an indictment that charged and a guilty plea that admitted to that crime occurring on March 8, 2020, although the offense indisputably occurred on August 31, 2020. Morgan was sentenced for the crime occurring on August 31, 2020, which had been charged in the original complaint, but not in the indictment to which he pled guilty. The Circuit concluded that there was no constructive ..read more

In United States v. Thomas, No. 22-2026 (February 21, 2024), the Circuit (Jacobs, Sack, and Nardini) reversed, in a per curiam opinion, the district court’s summary denial of a §2255 petition alleging that counsel failed to file a notice of appeal as petitioner requested. Thomas swore in his petition that he told his lawyer to file the notice of appeal. The district court held that this allegation was insufficient because Thomas did not include details, such as when and how the request was made, whether there were discussions about it, and whether he was aware of the deadlines for an appeal. T ..read more