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

In United States v. Chaires, No. 20-4162 (2d Cir. Dec. 7, 2023) (per curiam), the Second Circuit (Carney, Sullivan, and Menashi) remanded for resentencing, on plain error review, where the defendant was sentenced as a career offender based on New York controlled substance predicates. As our dear readers are well-aware, Chaires follows in the footsteps of several important Second Circuit cases holding that state drug crimes are categorically overbroad – and cannot be used to enhance a sentence – because they punish possession of more substances than the federal Controlled Substance Act (CSA). T ..read more

In United States v. Rodriguez, No. 22-1820-cr (2d. Cir. Dec. 7, 2023) (summary order), the Circuit (Kearse, Calabresi, and Nathan) vacated two drug- and alcohol-related special conditions on plain error review. At sentencing, the district court imposed a condition requiring Rodriguez to undergo drug treatment evaluation, and “if deemed necessary,” attend outpatient drug treatment. The written judgment, however, imposed an unconditional drug treatment requirement, without the evaluation component. The Court vacated the written condition due to its conflict with the district court’s oral pronou ..read more

The Solicitor General filed the government’s petition for a writ of certiorari on October 5, 2023. Respondent Bryan Range’s papers were filed on October 18, 2023. The Solicitor General filed its reply on November 1, 2023. The Supreme Court docket is available at: https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/23-374.html… The post The Government is seeking certiorari from Range v. Attorney General, United States, 69 F.4th 96 (3d Cir. 2023) (en banc), which held that 18 U.S.C. § 922(g)(1) was unconstitutional as applied to Bryan Range, whose predicate offense ..read more