News from Congress, the district courts, the Supreme Court, and the Second Circuit
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The Defense Post
Federal Public Defender Office
District of Vermont
Winter 2018-2019
  In this edition of The Defense Post, we bring you news from Congress, the district courts, the Supreme Court, and the Second Circuit.  We would also like to remind you that a brown bag meeting is scheduled for January 11, 2019, at noon.  That brown bag meeting will focus on the First Step Act of 2018.

Michael L. Desautels
Federal Public Defender—District of Vermont
Barclay T. Johnson

The First Step Act becomes law

  The First Step Act became law on December 21, 2018, and we previously circulated a more detailed summary of its provisions.  The law makes several changes that may help clients currently incarcerated.  For example, good time credit has been increased to 54 days per year and there are potential additional good time credit rewards for participating in programing.  The law’s additional highlights are:  (1) safety valve eligibility is increased substantially (from 1 criminal history point to potentially 8 criminal history points); (2) § 924(c) charges can no longer be stacked; (3) the mandatory minimums for § 851 enhancements have been somewhat lowered and the definition for a qualifying prior drug offense has been changed; (4) finally, the Fair Sentencing Act of 2010 has been made retroactive, potentially giving all defendants the benefit of the change from a 100:1 to a 18:1 crack-to-powder-cocaine ratio.

  In addition to these highlights, it is important to note that the new law also expands the § 851 enhancement such that a defendant can also now be charged with the enhanced mandatory minimum for having a prior serious violent felony (as defined in 18 U.S.C. § 3559(c)(2)).  

  As with past retroactive reductions, the Office expects to investigate and pursue relief for eligible defendants.  If you have any clients that are currently incarcerated on pre-Fair Sentencing Act crack cocaine mandatory minimums, please let us know as they may be eligible for a reduced sentence.

District Court News—good news for 8 U.S.C. § 1326 defendants

   In the last edition of The Defense Post, we updated you on the litigation stemming from United States v. Trujillo-Alvarez, 900 F. Supp. 2d 1167 (D. Or. 2012) (click here for the update).  Within the Second Circuit, the issue is still unresolved.
   Also notable is the fact that defendants across the country continue to prevail in 8 U.S.C. § 1326(d) motions to dismiss based on the Supreme Court’s holding in Pereira v. Sessions, 138 S.Ct. 2105 (2018).  Pereira held that a Notice to Appear in removal proceedings must contain a location and time for the removal hearing in order to vest the immigration court with jurisdiction.  Frequently, such Notices do not contain a location and time and § 1326 prosecutions are being dismissed based on this defect.  See, e.g., United States v. Soto-Mejia, 2018 WL 6435882 (D. Nev.); United States v. Cruz-Jimenez, 2018 WL 5779491 (W.D. Tex.).

Supreme Court News

United States v. Stittburglary of a vehicle adapted for overnight accommodation qualifies as generic burglary
   The Supreme Court recently decided United States v. Stitt, 139 S.Ct. 399 (2018), a case in which the Court considered whether two state burglary statutes qualified as violent felonies under the Armed Career Criminal Act (“ACCA”).  In Taylor v. United States, 495 U.S. 575 (1990), the Supreme Court adopted the categorical approach to analyzing the ACCA and, in doing so, held that Congress “intended a uniform definition of burglary [to] be applied” to cases involving that predicate offense.  Id. at 580.  This uniform definition of burglary, the Court held in Taylor, covers unlawful entry into “a building or other structure, with intent to commit a crime.” Id. at 598.
  In Stitt, the Court held that this generic definition covers state statutes that criminalize burglaries of vehicles that are used or adapted for the “overnight accommodation of persons,” Ark. Code. Ann. § 5-39-201(a)(1); Tenn. Code. Ann. § 39-14-403(a).  Stitt does not affect Vermont’s burglary statute, which should not qualify as a violent felony under the ACCA.
   Most of the Supreme Court’s criminal docket is still pending, including:
  • Stokeling v. United States (17-5554), where the Court will consider whether a state robbery offense can qualify as a violent felony under the ACCA “when the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.”  Note that in United States v. Pereira-Gomez, 903 F.3d 155 (2d Cir. 2018), the Second Circuit concluded all degrees of New York robbery (a statute similar to that at issue in Stokeling) qualify as crimes of violence under § 2L1.2 of the Sentencing Guidelines.  More recently, the Second Circuit held that Connecticut robbery qualifies as a violent felony under the force clause.  Shabazz v. United States, --- F.3d ---, 2019 WL 97355 (2d Cir.).
  • Two cases involving Eighth Amendment claims.  In Timbs v. Indiana (17-1091), a case arising out of the forfeiture of a Land Rover in connection with a state drug charge, the Court will consider “[w]hether the Eighth Amendment’s Excessive Fines Clause is incorporated against the States under the Fourteenth Amendment.”  In Madison v. Alabama (17-7505), the Court will consider whether the Eighth Amendment precludes executing an individual whose mental disability leaves him without memory of his commission of the capital crime.  
  • Gundy v. United States (17-6086), where the Court will consider “[w]hether Congress violated the nondelegation doctrine by delegating to the Attorney General the authority to determine if SORNA’s registration requirements apply to offenders convicted prior to SORNA's enactment.”
  • Gamble v. United States (17-646), where the Court will consider whether it should overrule the separate sovereigns exception to the Double Jeopardy clause.
  • United States v. Haymond (17-1672), where the Court will consider 18 U.S.C. § 3583(k), a provision that provides for a 5-year mandatory minimum supervised release sentence for certain sex offenders commit future sex offenses.  The Tenth Circuit concluded the provision was unconstitutional.  United States v. Haymond, 869 F.3d 1153 (10th Cir. 2017).
  • United States v. Davis (18-431), where the Court will consider whether the residual clause in 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague.

Second Circuit Review

United States v. Lutchman—Appellate waivers, like other contracts, need consideration
   In United States v. Lutchman, 910 F.3d 33 (2d Cir. 2018), the Second Circuit held that an appellate waiver would not be enforced because there was no consideration for the agreement.  Applying contract principles, the court concluded that such an agreement is invalid where one of the three core elements of a contract (offer, acceptance and consideration) is missing.  
United States v. Vinas—Discovery violation the basis for reversal
   In United States v. Vinas, 910 F.3d 52 (2d Cir. 2018), the Second Circuit reversed a conviction in which the government failed to turn over all aspects of a defendant’s statements to authorities.  In Vinas, the defendant was prosecuted for various drug offenses based on his possession of a bottle of mamajuana (a spiced rum beverage) that in fact concealed a quantity of cocaine.  Prior to trial, the government produced a statement by the defendant in which he told customs inspectors that he got the bottle from a store in the Dominican Republic.  Thereafter, when questioned further, he told inspectors he got the bottle from a friend.  This discrepancy was emphasized by the government to show consciousness of guilt at trial.  At trial, the government made the first statement seem like it was made at the “initial” inspection at customs.  In actuality, the statement was made after the defendant had been taken to an interview room and was arguably in custody.  Because counsel thought the statements had been made out in the open during the primary inspection, he did not move to suppress.  Once Vinas’ attorney found out at trial, he objected and moved for a new trial, a motion that was denied. 
   A divided panel, with Judge Hall dissenting, reversed.  Under United States v. McElroy, 697 F.2d 459, 464 (2d Cir. 1982), the Second Circuit requires that the government “disclose the substance not only of the incriminating post-arrest oral statements which it intends to use at trial, but also the substance of the defendant's responses to any Miranda warnings which preceded the statements.”  This is so even though the government may not intend to use the contents of a Miranda warning in its case (nor can it under Doyle v. Ohio, 426 U.S. 610 (1976) (holding that prosecutors are prohibited from referring at trial to a defendant's invocation of Miranda rights for purposes of impeachment)).  The rule set forth in McElroy and Vinas arguably expands the government’s Rule 16 obligations because the Rule only requires production of statements that the government intends to use at trial.  In Vinas, however, the Court reaffirmed that the circumstances of the interrogation also must be accurately produced.  Otherwise, counsel does not have an opportunity to file a suppression motion.
   Notably, the Second Circuit rejected the argument that Vinas was not really prejudiced because he, of course, knew the circumstances of his own statements and could have informed his counsel.  Such an argument shifts the government’s Rule 16 burden to the defendant and the Vinas Court accurately noted that criminal defendants often mistrust their attorneys who they do not choose, believe their attorney will best defend him/her if the attorney is ignorant of certain facts, or simply do not understand the legal significance of certain facts.  910 F.3d at 61 (quoting McElroy, 697 F.2d at 465).  Nor was there a requirement that the Miranda motion have been likely to be granted.  Instead, if the statement was important to the government’s case and the motion was not frivolous, reversal was required. 
United States v. Sawyer—Second Circuit panel struggles with child pornography sentence and law of case doctrine.
   In United States v. Sawyer, 907 F.3d 121 (2d Cir. 2018), the Second Circuit affirmed a marginally lower, but still “barbaric” 25-year sentence imposed after remand.  Originally, the Court vacated a 30-year sentence for failure to adequately consider certain 18 U.S.C. § 3553(a) factors.  United States v. Sawyer, 672 F. App’x 64-65 (2d Cir. 2016).  On remand, the district court expressly disagreed with the Second Circuit’s decision and offered that “surely . . . anyone reviewing the sentence would conclude, as I did, that it was substantively reasonable.”  Sawyer, 907 F.3d at 124.  The district court judge did, however, cut the sentence by 5 years for post-offense rehabilitation.  
   After resentencing, in an opinion authored by Judge Crawford, the Second Circuit originally vacated the new sentence for failure to comply with the Court’s mandate.  United States v. Sawyer, 892 F.3d 558, 559 (2d Cir. 2018).  There’s more.  Judge Jacobs dissented from the decision and the opinion was withdrawn sua sponte some six weeks later and the sentence affirmed.  An opinion affirming the sentence followed some months later, now with Judge Crawford dissenting.  United States v. Sawyer, 907 F.3d 121 (2d Cir. 2018).
   Although the majority thought it “odd and regrettable” that the district court rejected its opinion, Judges Jacobs and Pooler ultimately affirmed a sentence that they concluded was “barbaric without being all that unusual.”  Id. at 126. 
   By contrast, Judge Crawford (now dissenting) framed the matter as one of basic court governance:  “Following an appellate court’s determination that a sentence is substantively unreasonable because it fails to give weight to specific § 3553(a) factors, is the district court free on remand to take a second look and decline to change its original position?”  Id. at 129 (Crawford, J., dissenting).  Judge Crawford thought not: “we have already considered the principal reasons offered at both sentencings and found them to be insufficient to support the original sentence. That sentence has been re-imposed—reduced only by an unrelated factor not previously available. By failing to enforce its original mandate, the majority denies the defendant a sentence that fairly addresses the reasons which we previously identified as critical to a just sentence.”  Id. at 130.  Stay tuned, a petition for panel rehearing or rehearing en banc was filed in December. 
United States v. Demott—Second Circuit reaffirms limits on background hearsay testimony
   In United States v. Demott, 906 F.3d 231 (2d Cir. 2018), the Second Circuit rejected an as applied vagueness challenge to the Analogue Act, 21 U.S.C. §§ 802(32)(A) and 813.  The Court also reiterated that there are limits to the admissibility of background hearsay testimony.  In Demott, a detective described the nature of the information an informant provided that led to his involvement in the case.  Id. at 247.  In an earlier case, the Second Circuit explained that the admissibility of background hearsay testimony turns on “whether the probative value of this evidence for its non-hearsay purpose is outweighed by the danger of unfair prejudice resulting from the impermissible hearsay use of the declarant’s statement.”  United States v. Reyes, 18 F.3d 65, 70 (2d Cir. 1994).  The hearsay testimony in Demott should not have been admitted because the probative value of the testimony “was practically nil, while the prejudice flowing from the jury’s consideration of the content of the informant’s tip was substantial and obvious.”  906 F.3d at 248.
United States v. Barrett—circuit split deepens on § 924(c)’s residual clause
   The Circuits are divided on whether 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague and the Supreme Court will review the issue in United States v. Davis (18-431).  In United States v. Barrett, 903 F.3d 166 (2d Cir. 2018), the Second Circuit joined those courts that concluded it is not unconstitutional.  The Barrett Court held that § 924(c)(3)(B) is not unconstitutionally vague because “factfinding as to the violent nature of the predicate offense and the risk of physical force in its commission can be made by the trial jury in deciding the defendant’s guilt, thus avoiding both the Sixth Amendment and due process vagueness concerns at issue in Dimaya and Johnson.”  The Court held that the fact that Barrett’s jury did not make a finding regarding force was harmless error in light of the specific facts of his case.  The Circuit further held that a Hobbs Act Robbery conspiracy is a crime of violence because the object of the conspiracy, the Hobbs Act Robbery, is a crime of violence.
United States v. Santillan—Second Circuit upholds extended vehicle stop based on nervousness and vague answers
   In United States v. Santillan, 902 F.3d 49 (2d Cir. 2018), the Second Circuit rejected a claim that officers lacked reasonable suspicion to continue a traffic stop under Rodriguez v. United States, 135 S.Ct. 1609 (2015) (holding that officers must have reasonable suspicion of criminal activity to prolong a traffic stop beyond the time necessary to deal with any traffic infraction).  Although nervousness is an oft-criticized reasonable-suspicion factor, the Santillan Court held that the officer had reasonable suspicion based on the vehicle occupants’ “nervous behavior, illustrated by their avoidance of eye contact . . . and visibly shaking hands, coupled with their inability to provide a clear answer as to where they had come from.”  902 F.3d at 57.
   Judge Pooler dissented from the panel’s reasonable suspicion conclusion because “[t]his case is a clear example of officers acting on a ‘mere hunch.’”  Id. at 63 (Pooler, J., dissenting).  Judge Pooler argued that upholding a stop in these circumstances “may winnow the protections of the Fourth Amendment to a near nullity whenever an officer deems an individual simply ‘too nervous.’”  Id.
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