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

Decided on October 10, 2018

ISSUE:

ONE 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. TWO 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.

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HOLDING:

ONE 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, reduction in sentence is warranted. TWO The Second Circuit held that the factors under 18 U.S.C. §3553(a) may be used in determining the reduction of a sentence 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:

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 (11^th 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.

United States v. Calvin Weaver

No. 18-1697-cr

Second Circuit Court of Appeals

Decided En Banc August 16, 2021

Issue:

Pat-Down Reasonable Under Fourth Amendment?

Whether an officer’s pat-down search of defendant Weaver for weapons was reasonable under the Fourth Amendment where the officer frisked Weaver during a traffic stop after observing him stare at an unmarked police car and try to conceal something in his pants.

Holding:

Pat-Down is Reasonable When Totality of Circumstances Provides Reasonable Suspicion

The Second Circuit held that Weaver’s pat-down was reasonable; it also reiterated 1) that an officer’s verbal directives to a suspect do not transform a stop into a search when they do not amount to physical trespass, 2) an officer’s subjective intent has no bearing on determining when the officer’s interaction with the suspect constitutes a search, and 3) in determining whether an officer has reasonable suspicion that a suspect is armed, courts must look to the totality of the circumstances confronting the officer.

Facts:

Calvin Weaver was frisked during a traffic stop in a neighborhood known for gun violence. The officer who frisked him saw Weaver staring at the unmarked police car before hitching up his pants as he got into a sedan. Officers later encountered the sedan and pulled it over for a traffic violation. As the officer approached the car he saw Weaver slouched in his seat, shifting and using both hands to push down on his pelvic area as if to conceal something. When ordered outside the sedan with his hands on the trunk, Weaver responded that “[he] don’t got nothing.” As Weaver stood at the back of the car he pressed his pelvis toward the car. During the pat-down, officers discovered that Weaver had a loaded semi-automatic pistol and baggies of cocaine hidden in his pants.

Weaver filed a motion to suppress the evidence obtained during what he claimed was an unconstitutional pat-down. The district court denied his motion, focusing on the totality of the circumstances facing the officer at the time of the pat-down. It reasoned that some of the facts, on their own, were insufficient to create reasonable suspicion for a frisk, but that all the facts, when considered together, established that the officer had a reasonable suspicion to believe that Weaver might be armed and dangerous, therefore justifying a pat-down.

Weaver appealed his conviction for being a felon in possession of a firearm, arguing that the district court erred in denying his motion to suppress the gun and drugs found in the search. In support, Weaver claimed that in assessing whether reasonable suspicion existed, the court is limited to analyzing his conduct before the officer ordered him out of the car. Weaver further contended that the officer’s order marked the moment the search began because Weaver reasonably thought he was being searched at that point, and because the officer subjectively intended to search him when he gave him the order. Weaver also argued that the facts known to the officers did not provide them with reasonable suspicion that he had a weapon, as required by the Fourth Amendment in light of Terry v. Ohio (392 U.S. 1 (1968)). A divided Second Circuit panel heard Weaver’s arguments and reversed the district court’s denial of his motion to suppress the firearm and drug evidence. The panel majority concluded that the officer did not have a reason to believe that Weaver was armed and dangerous, but that, “at most, the officers had reason to believe that Weaver possessed something illicit.”

Upon rehearing Weaver’s appeal en banc, the Second Circuit vacated the panel opinion, rejected Weaver’s novel legal contentions as adopted by the panel majority, and confirmed several fundamental principles of Fourth Amendment jurisprudence.

Analysis:

Totality of Circumstances

When considering a ruling on a motion to suppress evidence, the Second Circuit reviews the district court’s legal conclusions de novo, its findings of fact for clear error, and its decision on mixed questions of law and fact, including whether there was a reasonable suspicion to justify a frisk. Warrantless searches and seizures are “per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions” (Katz v. United States, 389 U.S. 347, 357 (1967)). The Terry investigative stop and frisk is one such exception.

Terry Stop and Frisk

In Terry v. Ohio, the Supreme Court upheld a stop and frisk of two men who officers noticed “hover[ed] about a street corner for an extended period of time.” Worried the men were casing the store for a robbery, the officer stopped the men and asked for their names. When one of the men mumbled something in response, the officer grabbed and patted him down, finding a .38-calibre revolver in his coat pocket.

As to the constitutionality of the stop, the Court reasoned that the government’s general interest in effective crime prevention and detection can outweigh the minor intrusion imposed by a police stop for questioning. Accordingly, Terry establishes the rule that police may stop a person for investigative purposes when they have a “reasonable suspicion” that “a person they encounter was involved in or is wanted in connection with a completed felony,” even if that suspicion does not rise to the level required for probable cause.

Regarding the frisk, the Court reasoned that an officer must have a reasonable suspicion not only that criminal activity is afoot, but also that the person suspected is “armed and dangerous” (Terry, 392 U.S. at 23). The further line of inquiry recognizes that a frisk is a more intrusive invasion of a person’s security than a stop. The Supreme Court concluded with Terry that a frisk was nevertheless a “minor inconvenience and petty indignity” in light of the need for law enforcement officers to protect themselves and other prospective victims of violence. In other words, the Court recognized that the adherence to the probable cause standard for pat-downs could leave officers without the tools they need to do their jobs safely and respond to quickly evolving situations.

‘Reasonable Suspicion’ Standard

The reasonable suspicion standard requires only that an officer “be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion…” (Id. At 21). Reasonable suspicion requires less than the ‘fair probability’ of wrongdoing needed to support probable cause. In determining whether an officer has an “objective” basis for his conduct, the Court must “view the totality of the circumstances through the eyes of a reasonable and cautious officer on the scene, whose insights are necessarily guided by the officer’s experience and training” (United States v. Santillan, 902 F.3d 49, 56 (2d Cir. 2018). A “mosaic” of factors can contribute to a basis for reasonable suspicion, including, among other things, “the suspect’s behavior, the context of the stop, and the crime rate in the area” (Navarette v. California, 572 U.S. 393, 403 (2014)).

When Did the Search Begin?

An “officer’s action must be justified at its inception” (Kansas v. Glover, 140 S. Ct. 1183, 1188 (2020)). Thus, when reviewing the constitutionality of a frisk for weapons, the Court must examine the facts that preceded the frisk. In order to determine whether the facts preceding the search provided reasonable suspicion to conclude that Weaver was armed, the Court must first consider when the search began. It holds that the office began to search Weaver when he physically patted him down.

The Supreme Court has articulated two tests for determining whether a police officers’ conduct constitutes a “search” for purposes of the Fourth Amendment: whether the police officer “physically intrudes on a constitutionally protected area” and if not, whether the officer violates a person’s “reasonable expectation of privacy.”

‘Search’ Means Physical Trespass of Constitutionally Protected Area

Neither the officer’s verbal command to place Weaver in a position where a frisk might occur, nor his intent to conduct a frisk produced any invasion of a private and constitutionally protected area based on physical trespass or a reasonable expectation of privacy. The Supreme Court has held that as part of a lawful stop, an officer may take reasonable steps to ensure safety. He may order the driver and passengers out of the car, even if he does not have a reason to search the car or its occupants (See Pennsylvania v. Mimms, 434 U.S. 106, 111 n.6 (1977)). Depending on the circumstances, he may handcuff a suspect, secure him in the back of a patrol car, or order him to lie on the ground, move to another location, stand against a wall, or—as in this case—stand with his hands against the trunk of the car. Each of these measures may be appropriate to minimize safety risks, prevent a suspect’s flight, or secure a scene generally, and each can be challenged for being unreasonable or for transforming a Terry stop (requiring reasonable suspicion of criminal activity) into a de facto arrest (which requires probable cause). None of these measures, however, transforms a “seizure” into a “search.”

In short, the Second Circuit held that an officer’s verbal directives to a suspect do not transform a “stop” into a “search” unless the officer committed a physical trespass into a constitutionally protected area or otherwise violated the person’s reasonable expectation of privacy. Additionally, it is irrelevant whether the suspect reasonably believed that he was being searched, or what the officer’s subjective intentions were in placing the defendant in the search position. The search objectively commenced when the officer started physically patting down Weaver’s clothes.

For these reasons, the Second Circuit held that the officer had a particularized and objective basis for believing that Weaver might be armed and dangerous at the time he commenced the search, therefore the frisk was justified under the Fourth Amendment. The Second Circuit vacated the panel’s decision and affirmed the judgment of the district court.

United States v. Beltran-Levya (Guzman Loera)

Second Circuit Court of Appeals

Decided on January 25, 2022

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Issue:

Whether 1) defendant Guzman’s indictment should have been dismissed under the doctrine of specialty and 2) whether the Government violated the Fourth Amendment when it rerouted, then obtained electronic communication from Guzman’s private servers.

Holding:

The Second Circuit held that 1) Guzman lacked the standing to invoke the specialty doctrine as the treaty does not confer individual rights and Mexico explicitly signed a waiver excepting the specialty doctrine, and 2) the Fourth Amendment does not apply to “non-resident aliens,” and neither the servers nor Guzman were located in the U.S.

Facts:

Guzman, also known as “El Chapo,” is the former leader of Mexican drug trafficking organization Sinaloa Cartel, which imported more than a million kilograms of cocaine and hundreds of kilograms of heroin, marijuana, and methamphetamine into the U.S. In July 2009, the Eastern District of New York indicted Guzman and an arrest warrant was issued. Guzman was a fugitive at that time, following his escape from a Mexican prison in 2001 by bribing officials. In 2014, Mexican authorities recaptured Guzman and detained him in a maximum-security prison where he escaped again in 2015 after digging a mile-long tunnel starting under his cell. In 2016 he was recaptured by Mexican authorities, and in 2017, Mexico extradited Guzman to the U.S. to stand trial.

After a three-month trial, Guzman was convicted of a Continuing Criminal Enterprise (CCE) offense, an international narcotics conspiracy, a cocaine importation conspiracy, a cocaine distribution conspiracy, international distribution of cocaine, use of firearms in relation to drug trafficking crime, and conspiracy to launder narcotics proceeds. Guzman was sentenced to five concurrent sentences of life imprisonment for the CCE and drug trafficking offenses, a consecutive 30-year sentence for the firearms offense, a concurrent term of 240 months’ imprisonment for the money laundering offense, and he was also ordered to forfeit more than $12 billion.

On appeal, Guzman makes ten claims: 1) that his indictment should have been dismissed under the doctrine of specialty, 2) he was denied his Fifth and Sixth Amendment rights to a fair trial and the effective assistance of counsel due to the conditions of his pretrial detention, 3) the murder conspiracy, charged as one of the CCE violations, should have been dismissed, 4) the Government violated his Fourth Amendment rights and Rule 41 when it obtained electronic messages from servers location in the Netherlands, 4) the District Court exceeded its discretion in making evidentiary rulings, 6) Guzman’s lead lawyer had a per se conflict of interest, 7) Guzman was prohibited from presenting a defense of Government bias, 8) the jury charge on unanimity was erroneous, 9) a new trial should have been granted based on juror misconduct, and 10) the case should be remanded for a hearing on whether the Government and the District Court engaged in improper ex parte proceedings. The Second Circuit concluded that none of these claims had merit, and they therefore affirmed the order of the Appellate Division.

Analysis:

Doctrine of Specialty Claim

The doctrine of specialty is an international law principle requiring that an extradited defendant “can only be tried for one of the offenses described in the extradition treaty, and for the offense with which he is charged in the proceedings for his extradition” (United States v. Rauscher, 119 U.S. 407, 430 (1886). Guzman argued that after Mexico agreed to extradite him to the U.S. for charges in indictments in Texas and California, the Government “fraudulently procured” Mexico’s waiver of the specialty doctrine in order to transfer him to stand trial in New York. He also argued that Mexico did not agree to the harsh conditions of his pretrial detention.

Mexico extradited Guzman to the U.S. pursuant to the Extradition Treaty. Shortly after, Mexico consented to an exception of the doctrine of specialty, pursuant to Article 17, which states that “the treaty does not confer an individual right to assert violations of the Treaty.”  The District Court denied Guzman’s motion to dismiss the New York indictment based on the doctrine of specialty, ruling that Guzman lacked standing to invoke the doctrine, relying on United States v. Barinas, 865 F.3d 99, 105 (2d Cir. 2017), wherein the Second Circuit explained that “international treaties establish rights and obligations between States-parties—and generally not between states and individuals, notwithstanding the fact that individuals may benefit because of a treaty’s existence.” (Id. at 104-05). Furthermore, the Court explained, Mexico explicitly consented to having Guzman tried on the New York indictment. His specialty claim was therefore denied.

Fourth Amendment Claim

Guzman argued that the Government violated the Fourth Amendment by obtaining records of his phone conversations and text messages, and that the District Court erred in not suppressing these conversations. The Government obtained the conversations after gaining the cooperation of the engineer who initially set up a private, encrypted network for the Sinaloa Cartel, which was located first in Colombia, then in Mexico and Canada. At the direction of the FBI agents, the engineer moved the Guzman Network servers to the Netherlands and downloaded Guzman’s calls. The Government worked with Dutch authorities to surveil and obtain search warrants for the servers.

Prior to trial, Guzman moved to suppress the “Dutch Calls.” The District Court ruled that Guzman failed to establish that his rights were violated as he relied on the affidavit of an agent lacking knowledge that the Dutch servers belonged to Guzman. The Fourth Amendment does not apply to “the search and seizure by the United States agents of property that is owned by a nonresident alien and located in a foreign country” United States v. Verdugo-Urquidez, 494 U.S. 259, 261 (1990). Because neither Guzman nor the servers were located in the U.S., the Dutch Calls were not subject to Fourth Amendment protections. His Fourth Amendment claim was denied, along with all remaining eight claims on appeal.