Category Archives: Second Circuit

RICO Conviction Triggers § 924(c) Enhancement

Published By Stephen Preziosi

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US v Martinez

991 F.3d 347

Second Circuit Court of Appeals

Decided on March 16, 2021

Issue:

RICO Conviction and a ‘Crime of Violence’

Whether 1) defendant Martinez’s RICO conviction based on only one predicate crime of violence is a violent crime for the purposes of § 924(c) and 2) whether Martinez’s sentence of 240 months’ imprisonment was substantively unreasonable.

Holding:

RICO Conviction With Any Element of Violence Triggers § 924(c) Enhancement

The Second Circuit held that 1) a RICO conviction based on only one predicate crime of violence is a violent crime for the purposes of § 924(c) and 2) Martinez’s sentence was not unreasonable and not an abuse of discretion.

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Facts:

Defendant Jose Antonio Martinez, along with other MS-13 gang members, traveled several times into rival gang territory searching for a man against whom Martinez had a grudge. When their search attempts proved unsuccessful, they decided to shoot at a group of men they believed to be members of Los Vatos Locos. The shots killed a man who was not affiliated with the rival gang, and Martinez later pled guilty to several RICO charges: conspiracy to commit murder for the purpose of maintaining and advancing his position in a racketeering enterprise in violation of 18 U.S.C. § 1959(a)(5), and possessing a firearm during a crime of violence during which the firearm was brandished and discharged in violation of 18 U.S.C. § 924(c)(1)(A). Martinez was sentenced to concurrent ten-year terms of imprisonment on the racketeering counts and a mandatory consecutive ten-year term on the firearms charge.

Martinez appealed, arguing that his 240 months’ imprisonment was substantively unreasonable due to his attempted cooperation with authorities, his personal circumstances, and the fact that he did not personally shoot Halley. Martinez later filed a supplemental brief arguing that the Supreme Court’s decisions in Johnson v. United States (576 U.S. 591, 135 S.Ct. 2551, 193 L.Ed2d 569 [2015]) and United States v. Davis (139 S.Ct. 2319, 204 L.Ed.2d 757 [2019]), and the Second Circuit’s decision in United States v. Ivezaj, 568 F.3d 88 (2d Cir. 2009), calls into question his § 924(c) conviction. Because he raised the § 924(c) argument for the first time on appeal, the Second Circuit examined the case under plain error review.

Analysis:

§ 924(c) Firearm Enhancement

As relevant here, § 924(c) provides an enhanced punishment for “any person who, during and in relation to any crime of violence…uses or carries a firearm.” (18 U.S.C. § 924(c)(1)(A). The enhancement requires a seven-year mandatory sentence if the firearm is brandished, and ten years if it is discharged.

Johnson and Davis Decisions

The Supreme Court held in Johnson that the “residual” clause of the Armed Career Criminal Act (ACCA), which similarly enhances punishment for possession of a firearm by a convicted felon who had multiple prior convictions for “violent felonies” defined as felonies that “involve conduct that presents a serious potential risk of physical injury to another” was unconstitutionally vague. This decision caused confusion in the courts of appeals as to whether the holding applied not only to statutes that required courts to characterize crimes of which a defendant had been previously convicted, but also to cases like this one involving § 924(c), where risk is assessed with respect to the offense charged.

Then came Davis, in which the Supreme Court invalidated the residual clause applicable to Martinez under § 924(c)(3)(B); thus Martinez’s underlying offenses cannot be found to be crimes of violence under that branch of the definition. Martinez therefore argued that these decisions call into question whether his convicted offense triggers §924(c)’s force clause, which requires that the conviction “ha[ve] as an element the use, attempted use, or threatened use of physical force against the person or property of another.”

United States v. Ivezaj and RICO Violations

In United States v. Ivezaj, the Second Circuit held that a RICO offense based on two violent racketeering predicates is a violent crime for the purposes of § 924(c). Martinez contended that because his RICO offense is predicated on only one violent act and two conspiracy acts, his offense does not trigger the § 924(c) enhancement. But the Second Circuit disagreed, explaining that the substantive RICO violation based on only one predicate crime of violence would be a crime of violence under § 924(c).

As the Government argued, it is not necessary for every element of the crime to involve violence, only one element of the crime must do so. Ivezaj suggests that in order to address substantive violations of RICO, one must “look to the predicate offenses to determine whether a crime of violence is charged.” (Ivezaj, 568 F.3d at 96). Following this logic, the Court explained that a RICO pattern consisting of a murder and a narcotics conspiracy requires a finding of the use of force against another just as that of a RICO pattern consisting of two murders. Martinez therefore failed to prove that the district court plainly erred in accepting his guilty plea to a violation of § 924(c) predicated on an admitted pattern of racketeering that includes a predicate violent crime.

Unreasonableness of Sentence

Martinez also argued that his 20-year sentence was unreasonable, but because the RICO pattern included a murder, punishable under New York State law by a maximum of life imprisonment, the RICO offense is similarly punishable by a maximum of life imprisonment. The sentencing guidelines calculated by the district court recommended a sentence between 292 and 364 months’ imprisonment, so the Second Circuit could not find that Martinez’s sentence of 240 months’ imprisonment was unreasonable or an abuse of discretion. The Second Circuit accordingly affirmed the judgment of the district court.

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Use of Handcuffs During Investigatory Stop Is Not An Arrest

Published By Stephen Preziosi

Use of Handcuffs During Investigatory Stop Is Not An Arrest

United States of America v. Fiseku

17-1222-cr

United States Court of Appeals: Second Circuit

Decided October 4, 2018

ISSUE

Whether an officer’s use of handcuffs in an investigatory detention is unreasonable and provokes a de facto arrest without probable cause in violation of the Fourth Amendment when the officer had a reasonable suspicion to stop the defendant, examined the defendant’s license, patted him down and placed handcuff under the guise of officer safety.    

HOLDING

The Second Circuit Court of Appeals held that under unusual circumstances, such as those observed in this case, an officer’s use of handcuffs during an investigatory detention does not result in a de facto arrest under the Fourth Amendment.  The officers acted reasonably during the late-night investigatory stop in restraining Fiseku and two other individuals in handcuffs before the officers developed probable cause to arrest because 1) The officer was outnumbered before backup arrived. 2) The driver of the vehicle lied about the car’s transmission and potentially lied about harboring two additional people. 3) The officer did not know if the defendants could reach their weapons.

FACTS OF THE CASE

In September 2014 at about 1:15 AM, Sergeant Vincent Gruppuso pulled up to a white Nissan Pathfinder and engaged in a short discussion with the driver, later identified as Sefedin Jajaga.  He explained that the Pathfinder was stopped on a dirt pull-off because the car was having transmission problems and he was waiting for a friend who agreed to bring a tow truck.  While driving off, Gruppuso found the situation to be dubious because he knew of a vacant home for sale nearby that would be a prime target for… burglary.  He decided to go back and check on the vehicle only to find the Pathfinder driving on a nearby street only five minutes after the driver claimed to have transmission problems.  Gruppuso followed the car to a parking lot near the highway.

Gruppuso entered the parking lot, and observed the Pathfinder parked in the far corner of the lot, surrounded by trees.  He parked nearby and saw three men in the vicinity of the Pathfinder: Jajaga in the driver’s seat, a second man, named Hughes, in the passenger seat and a third man, named Fiseku, walking around the rear of the vehicle.  At 1:25 AM, Gruppuso radioed for additional units to join him in the parking lot.  By the time additional officers arrived, Gruppuso had already begun questioning Fiseku: examining his driver’s license, patting him down and placing him in handcuffs.  Together, the three officers directed Jajaga and Hughes to exit the Pathfinder, then patted them down and handcuffed them as well.  The three men were handcuffed under the guise of officer safety. 

The officers explained to the men that they were being detained; they were not told they were under arrest nor were they read their Miranda Rights while the officers investigated their suspicious behavior.  The defendants were separated for individual questioning and, with consent, Gruppuso searched the Pathfinder where he recovered the following items: baseball caps, a sweatshirt, a badge, a stun gun, a BB gun replicating a Colt .45 pistol, a blank pistol replicating a .25 automatic, flashlights, walkie talkies, gloves, a screw driver and duct tape. After the search was complete, officers were concerned about a potential home invasion, so they requested additional units to canvas the area. 

In September 2015, Fiseku and Jajaga moved to suppress physical evidence recovered from the vehicle and statements made to the officers during the stop, arguing both points under the Fourth and Fifth Amendments.  In December 2015, the District Court entered an order granting in part and denying in part the suppression motion. The court rejected the defendant’s claim that there was a de facto arrest without probable cause in violation of the Fourth Amendment and reasoned that the officer’s conduct, including the handcuffs, was reasonable in light of the circumstances.  The court granted the motion to suppress the defendants’ statements because the defendants were subjected to interrogation without being read their Miranda rights.  They did, however, reject the defendants’ request to suppress physical evidence because Jajaga’s consent to search the vehicle was voluntary and freely given.

COURT’S ANALYSIS

The Second Circuit Court of Appeals held that under unusual circumstances an officer’s use of handcuffs does not result in a de facto arrest under the Fourth Amendment.  In the Fourth Amendment there is a defined right to be free from unreasonable searches and seizures however, an officer’s decision to briefly restrain a suspect in handcuffs is reasonable if it ensures the officers’ safety.   The U.S. Constitution intends for reasonableness to mean a balancing of particular need to search or seize against the privacy interests invaded by such actions.

Generally, an arrest must be supported by probable cause; however, an officer may conduct a brief investigatory detention, commonly known as a Terry stop, as long as the officer has reasonable suspicion that the person to be detained is committing or has committed a criminal offense. Yet even a proper investigatory stop can ripen into a de facto arrest that must be based on probable cause. In considering a claim of de facto arrest, the courts consider the following facts:

(1) the length of time involved in the stop; (2) its public or private setting; (3) the number of participating law enforcement officers; (4) the risk of danger presented by the person stopped; and (5) the display or use of physical force against the person stopped, including firearms, handcuffs, and leg irons.

The courts cautioned in United States v. Newton, 369 F.3d 659, 674 (2d Cir. 2004) that no one of these factors is determinative.  But to satisfy the reasonableness standard, officers conducting stops on less than probable cause must employ the least intrusive means reasonably available to affect their legitimate investigative purposes.

According to the court, this case presented unusual circumstances where an officer was able to handcuff a suspect without transforming a Terry v. Ohio,392 U.S. 1stop into an arrest.  Gruppuso had reason to believe that Jajaga lied about why he was stopped on a dirt pull-off when only five minutes after their initial interaction Gruppuso saw the Pathfinder drive into the dark parking lot surrounded by trees because it was highly improbable that Jajaga managed to start the car only moments after claiming the transmission of the car was broken.  Gruppuso’s suspicions were reasonably heightened when there were two additional passengers, Hughes and Fiseku, that he did not know of during the initial interaction with Jajaga.  Given the aforementioned observations and the fact that Gruppuso arrived in the parking lot only moments after the Pathfinder, it is reasonable for Gruppuso to have inferred that either Hughes and Fiseku were hiding in the car during the interaction or they had been waiting for Jajaga in the parking lot.  In either scenario, the court determined that in this setting, a reasonably cautious officer in Gruppuso’s position would have objective grounds to suspect that the three men were about to commit a crime, or that they had recently done so. 

In the time it took for two additional officers to arrive, Gruppuso didn’t find any weapons or contraband on Fiseku’s person during the pat down but, the Supreme Court expressly recognized that suspects may injure police officers and others by virtue of their access to weapons, even though they themselves may not be armed.  The Michigan v. Long, 463 U.S. 1032, 1048 (1983) Court went on to explain that investigative detentions involving suspects in vehicles are especially fraught with danger to police officers.  Additional suspects Jajaga and Hughes were still seated in the Pathfinder when Gruppuso handcuffed Fiseku, where weapons could have been placed within reach.  Additionally, in the dark, surrounded by trees, Gruppuso couldn’t feasibly conduct a protective sweep to check for secreted weapons or additional associates while monitoring three suspects, who the District Court described as ‘muscular men’

Handcuffs are generally seen as a hallmark of a formal arrest. Newton, 369 F.3d at 676 yet, the courts recognize that regardless of whether probable cause to arrest exists, a law enforcement agent, faced with the possibility of danger, has a right to take reasonable steps to protect himself. Sensing the conflict between the two principles, the courts elaborate that the Fourth Amendment will occasionally permit handcuffs in a Terry stop if the police have a reasonable basis to think that the person detained poses a present physical threat and that handcuffing is  the least intrusive means to protect against that threat. United States v Bailey, 743 F.3d 322 (2d Cir. 2014). 

Fiseku prompts the courts to consider United States v. Bailey, where, on appeal, the courts found that there was a violation of the Fourth Amendment when the officers handcuffed the suspects because the record indicated no physical threat or other factors that would justify the handcuffing of these two men.  Conversely, Gruppuso was not looking to identify the men like in the Bailey case; he simply stumbled upon a suspicious scenario in the middle of the night in a secluded, wooded location.  His goal was to either confirm or deny his suspicion that they had committed, or were poised to commit, a home invasion or some other crime.  The likelihood of criminal activity increased the risk that one or more suspects had access to a weapon or might attempt to flee; therefore, Guppuso had to make the decision to best protect himself and the community, acting in the face of uncertainty about how many associates might be present, what sort of criminal activity they might be involved in, or whether any of them might have access to a weapon.

Sentence Reduction Pursuant to Rule 35(b) and the 3553(a) Factors

Published By Stephen Preziosi

Sentence Reduction Pursuant to Rule 35(b) and the 3553(a) Factors

October 16th, 2018

USA v. KATSMAN

16-2583-cr

United States Court of Appeals for the Second Circuit

Also See: Appeal After Plea and Sentence 

Writ of Habeas Corpus

Writ of Errors Coram Nobis 

 

ISSUE 1) Whether the district court is allowed to deny the government’s motion pursuant to Rule 35(b) of the Federal Rules of Criminal Procedure for a reduction of sentence where the courts determined that the defendant provided substantial assistance in an ongoing matter and reaped the benefits of his cooperation in said matter dealing with SDNY. 2) Whether the factors in 18 U.S.C. §3553(a) should be a used in determining the reduction of a sentence pursuant to a motion under Rule 35(b) where the defendant was offered a plea deal in exchange for substantial assistance in an ongoing matter that the defendant had previously participated in.

HOLDING

1) The Second Circuit held that the district court may deny the government’s motion pursuant to Rule 35(b), such motions are to be decided in two steps: first, the lower court must determine whether the defendant, in fact, provided substantial assistance; Second, if so, it must then determine what, if any, sentence reduction is warranted.  2) The Second Circuit held that the factors under 18 U.S.C. §3553(a) may be used in determining the sentence reduction because it directly relates to step two in determining whether to reduce the defendant’s sentence in light of his cooperation.

 

FACTS OF THE CASE

On November 17, 2010, Katsman pled guilty in the EDNY for charges related to a fraudulent check-cashing scheme and was sentenced to 84 months imprisonment. He moved to withdraw his guilty plea or for resentencing before a different judge. His motion to withdraw was denied and his resentencing resulted in a total of 120 months’ imprisonment.

 

In 2013, the FBI and US Attorney approached Katsman about cooperating in a separate case pending in the SDNY regarding a no-fault insurance fraud scheme and various investment frauds. Subsequently, the government entered into a joint EDNY-SDNY cooperation agreement with Katsman; the government agreed to make a Rule 35 motion to reduce his sentencing in EDNY given that he provided substantial assistance in the ongoing matter. In February 2015, Katsman was required to plead guilty to uncharged criminal conduct in SDNY as part of the deal.

The following year, the US Attorney filed a motion pursuant to Rule 35(b) in the EDNY for resentencing based on his substantial assistance in the prosecutions in the SDNY. While the sentence in the SDNY sentencing was reduced to time served, the district court denied the government’s motion to reduce sentencing in the EDNY. Following Katsman’s initial appeal and remand from the federal court, the district court issued its decision, which is sealed, and a summary of its reasoning.

 

COURT’S ANALYSIS ON THE USE OF 3553(a) FACTORS IN SENTENCE REDUCTION 

In this case, the Second Circuit held that in deciding a Rule 35(b) motion, the district court must first determine whether the defendant in fact provided substantial assistance and second, if he did, the court must determine what, if any, reduction in sentence is warranted. The federal court did not accept Katsman’s argument that the district court conflated these discrete steps into one. They determined that the district court fulfilled the requirements of the first step by inferring that Katsman clearly provided substantial assistance when he pleaded guilty to a “uncharged criminal conduct” in the SDNY. They then determined that the district fulfilled the requirements of the second step by explaining that a 120-month sentence, which was the middle of the guidelines range, remains sufficient but not greater than necessary to comply with the purposes of Section 3553(a) because, among other things, Katsman had already received the benefit of his cooperation in the SDNY when the sentence in the SDNY sentencing was reduced to a sentence of time served.

 

While the federal court has yet to address the role of factors in 18 U.S.C. §3553(a), if any, in sentencing reduction pursuant to a Rule 35(b) motion, the text also does not preclude the district court from considering factors in addition to the defendant’s “substantial assistance” and to what extent. In fact, Rule 35’s use of the word “may” implies discretion and “discretion can best be exercised by considering the various sentencing factors”. The only limitation, however, is found under Rule 35(b) which requires that the defendant provides “substantial assistance if he is to receive any benefit for his cooperation.”

If the courts were required to resentence a defendant considering only substantial assistance, there would be “too little discretion for the court to exercise” in deciding whether a reduced sentence is “warranted or prudent under the circumstance.” United States v. Manella, 86 F.3d 201, 2014-05 (11th Cir. 1996). A defendant’s circumstances could change after the sentencing in a way that has an effect on the appropriateness of his sentencing. Take, for instance, a defendant with a terminal illness, which may result in a greater reduction, as opposed to a defendant like Katsman who continued to engage in criminal behavior and lied to the courts about it, which would result in a lesser reduction.

No Need for Lower Court to Agree with Appellate Court’s Reasoning for Mandate

Published By Stephen Preziosi

United States v. Jesse Sawyer

No. 15-2276-cr

Second Circuit Court of Appeals

Decided October 26, 2018

 

Issue: Whether the resentencing of a defendant by a district judge who refuses to agree with the appellate court’s reasoning for the resentencing, and who reduces the sentence based on a factor not addressed by the appellate court, should be reversed.

 

Holding: The Second Circuit held that, pursuant to the mandate rule, on remand, the district court is only required to comply with the appellate court’s order; it is not required to agree with the appellate court’s reasoning for the order or to consider the appellate court’s reasoning upon making a decision.

 

Facts: Defendant Jesse Sawyer pled guilty to two counts of sexual exploitation of children in violation of USC §§ 2251(a) and one count of receipt of child pornography in violation of 18 USC §§ 2252A(a)(2)(A) and 2256(8)(A). Sawyer was sentenced to 30 years in prison. Prior to this appeal, the Second Circuit remanded to the district court for resentencing, given “Sawyer’s harrowing upbringing and comparatively low danger to the community.” Sawyer was resentenced by the district court to 25 years in prison, and Sawyer challenged his new sentence on both reasonableness and “law-of-the-case-grounds.”

 

Each of Sawyer’s sexual exploitation charges carried a fifteen-year mandatory minimum and 30-year maximum sentence. The receipt of child pornography count carried a mandatory minimum of five years in prison and a maximum of 20 years. The combined maximum sentence, therefore, was 80 years in prison.

 

The presentence report and defendant’s sentencing memorandum described Sawyer’s horrific upbringing, which consisted of continuous sexual and physical abuse. Although the sentencing judge acknowledged Sawyer’s “nightmarish” childhood—or, rather, the “childhood that never was”—she found that it could not excuse his actions.

 

On the first appeal, the Second Circuit concluded that Sawyer’s original 30-year sentence had been substantially unreasonable. The Court considered the nature and extent of Sawyer’s crimes, which did not rise to the level of “extreme and heinous criminal behavior” like sexual assault, for which a 30-year sentence would have been more appropriate. In addition, the Second Circuit found that the district court “failed to give appropriate weight to a factor listed in Section 3553(a)”: the history and characteristics of the defendant.

 

At Sawyer’s resentencing in 2017, the district judge clearly expressed her disagreement with the Second Circuit’s conclusion and, in her view, the original sentence remained substantively reasonable. Based on Sawyer’s post-sentencing rehabilitative efforts alone, the judge reduced Sawyer’s sentence by five years.

 

Court’s Analysis: When an issue is resolved on appeal, on remand, the district court is prohibited from ignoring or rejecting the appellate court’s determination. See Burrell v. United States, 467 F.3d 160, 165 (2d Cir. 2006). This rule, known as the “mandate rule” requires district courts to comply with the Second Circuit’s holdings on the case.

 

Although the Second Circuit acknowledged the district court’s disagreement with the Court’s reasoning, it concluded that, nevertheless, the district court judge’s reduction of five years was substantial. The Court determined that its mandate did not prevent the district court from disagreeing with the Second Circuit’s reasoning, nor did it require the district court to consider the sentencing factors in the way that the Second Circuit would have done. Instead, the district court was only required to sentence the defendant “within the (elastic) bounds of reasonableness.”

 

Whether the district court agrees with the appellate court’s ruling is, thus, essentially irrelevant, as long as the court has complied with the mandate. Indeed, “the mandate rule only ‘compels compliance.’” See United States v. Ben Zvi, 242 F.3d 89, 95 (2d Cir. 2001).

 

Although the Second Circuit determined that it could not bring itself “to call [the sentence] shocking under governing law,” it still recognized the sentence as “barbaric” yet declined to remand for resentencing.

 

Chief District Judge Geoffrey Crawford dissented. He concluded that on remand, instead of relying on the Second Circuit’s ruling, the district court simply “changed the subject” by reducing the sentence by relying on a reason unaddressed by the Second Circuit. Judge Crawford noted that the new sentence “still fails to take into proper consideration the two § 3553(a) factors” the Court had addressed as the basis for reversal. Noting that the panel here identified the district court’s refusal to properly weigh these factors as significant substantive errors, Judge Crawford concluded that the “errors continue to form the primary basis for the new sentence.”