Tag Archives: second circuit court of appeals

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.”

 

 

 

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

Published By Stephen Preziosi

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.

 

HOLDING

ONE The Court held that the district court is allowed to deny the government’s motion pursuant to Rule 35(b) because such motions are to be decided in two steps: first it determines whether the defendant in fact provided substantial assistance; where the defendant pleaded guilty in SDNY with charges solely based on information voluntarily provided during proffer sessions. Second, if so, it must then determine what, if any, reduction in sentence is warranted; where no reduction in sentencing. TWO The Court held that the factors under 18 U.S.C. §3553(a) may be used in determining the reduction of a sentence because it directly effects step two in deciding whether to reduce the defendant’s sentence in light of his cooperation.

 

FACTS OF THE CASE

On November 17, 2010, Igor Katsman pled guilty in the EDNY to charges relating 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. Consequently, his motion to withdraw was denied and his resentencing resulted in a total of 120 months’ imprisonment.

 

In 2013, the FBI and USAO-SDNY 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, and the government agreed to make a Rule 35 motion to reduce his sentencing in EDNY because 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 plea deal.

 

The following year, the USAO-EDNY 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 125 years’ imprisonment in the SDNY sentencing was reduced to a sentence of 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 and a summary of its reasoning, which is sealed.

 

COURT’S ANALYSIS

In this case, the courts find 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 it does, 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 sentencing, the middle of the guidelines range, remains sufficient but not greater than necessary to comply with the purposes of Section 3553(a)” D.Ct. Dkt. No. 103 because, among other things, Katsman had already received the benefit of his cooperation in the SDNY when the 125 years’ imprisonment 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.” Additionally, Section 3553(a) requires that courts “impose a sentence sufficient, but not greater than necessary,” and that they consider the “statutory factors in determining the particular sentence to be imposed.”

 

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 may result in a smaller reduction. Thus, the Circuit Court found that on a Rule 35(b) motion, the trial court may apply the 3553(a) factors at sentencing.

Indicted to Convicted: Second Circuit Sets Standard for Indictment Amendments and Variances

Published By Stephen Preziosi

United States v. Dove

No. 14-1150-cr

Second Circuit Court of Appeals

Decided on March 6, 2018

Federal Appeals Attorney in the Second Circuit Court of Appeals

Issue: Whether (1) an indictment is constructively amended where the majority of names of co-conspirators are removed from jury instruction and where the government presents evidence of minimal involvement in the conspiracy on the part of the defendant; (2) whether there is prejudicial variance from an indictment when the evidence at trial demonstrates multiple conspiracies although the indictment charged one large conspiracy; (3) whether the evidence was sufficient to convict the defendant of conspiracy; and (4) whether the district court erred in sentencing the defendant as a career offender based on two New York first and second-degree robbery convictions.

 

Held: The Second Circuit held that (1) neither the redaction of co-conspirators’ names in jury instruction nor evidence demonstrating the defendant’s minimal involvement constructively amended the indictment; (2) no prejudicial variance from the indictment occurred, even though the government presented evidence of multiple conspiracies; (3) evidence was sufficient to convict the defendant of conspiracy even though evidence only showed the defendant interacted with one co-conspirator; and (4) the defendant was properly sentenced as a career offender.

 

Facts: Dove was convicted of conspiracy to distribute and possess with intent to distribute heroin and cocaine in violation of 21 U.S.C. § 841(b)(1)(C) and 846. He was also charged with intent to distribute cocaine, in violation of 21 U.S.C § 841(a)(1) but was acquitted of that count.

 

The government’s primary evidence was testimony of undercover agents and video recordings of Dove participating in a drug transaction. The evidence presented at trial only included interactions between Dove and co-conspirator Ingram, although the indictment charged a six-member conspiracy. Out of the 30 transactions that took place throughout the operation, Dove was only involved in one. At trial, the district court gave jury instructions, in which the names of four of the alleged co-conspirators were redacted, leaving only the names of Dove and Ingram. Dove moved for acquittal and, alternatively, moved to vacate the judgment, claiming that the evidence was insufficient to convict him of conspiracy. The court denied both motions.

 

At sentencing, the court found that Dove qualified as a career offender under U.S.S.G. § 4B1.1, which resulted in a sentence of 72 months and five years of supervised release. Dove appealed both his conviction and sentence.

 

 

Analysis: Dove argued on appeal that 1) the indictment was constructively amended, 2) the government’s evidence constituted a prejudicial variance from the terms of the indictment, 3) the evidence was insufficient to support Dove’s conviction, and 4) the district court erred in sentencing him as a career offender.

 

Constructive Amendment of the Indictment

 

The conspiracy involved six individuals. However, the district court’s jury instructions removed the names of four co-conspirators and the government’s evidence only linked Dove to Ingram and no other co-conspirators. Dove claimed this constructively amended the indictment, but the Second Circuit rejected the argument, holding that neither the jury instructions nor the government’s evidence altered an essential element of the charges in the indictment.

 

When the charge upon which the defendant is tried differs significantly from the charge for which the grand jury voted, the indictment has been constructively amended. A constructive amendment occurs when an additional element is added or an element essential to the crime charged is altered. United States v. Agrawal, 726 F.3d 235, 259 (2d Cir. 2013).

 

The Second Circuit first considered whether the names of four co-conspirators, which were removed from the district court’s jury instructions, could have been essential to the charges set forth in the indictment. Pointing to United States v. Harris, 8 F.3d 943, 946 (2d Cir. 1993), in which this Court held that “an individual need not know the identities of all coconspirators in order to be found guilty of being a member of a conspiracy,” the Second Circuit determined that the inclusion of the other co-conspirators’ names was not essential and, thus, did not constructively amend the indictment. In addition, the Court concluded that the names did not constitute a necessary element by setting the minimum size of the conspiracy because the indictment specified that Dove and Ingram conspired “with others.”

 

The Second Circuit was also unpersuaded by Dove’s argument that the indictment was constructively amended by the government’s evidence at trial. The evidence demonstrated that: Dove participated in one transaction; the transaction was the only one out of the 30 that involved cocaine unlike the others, which involved heroin and pills; there was no evidence linking Dove to other members of the conspiracy besides Ingram; and there was no evidence that investigators were aware of Dove prior to the last day of the conspiracy.

 

While the Second Circuit conceded that Dove played a minor role in the conspiracy, the Court declined to agree that the evidence resulted in a constructive amendment from the conduct considered by the grand jury. The evidence at trial included Dove’s agreement to sell cocaine and that Ingram had informed the agent that Dove had sources for heroin (in Dove’s presence). The Court determined that this evidence was consistent with the terms of the indictment voted on by the grand jury.

 

Prejudicial Variance from the Indictment

 

Dove also argued that the evidence presented at trial, demonstrating multiple conspiracies involving Ingram, resulted in prejudicial variance from the indictment because the indictment alleged a single larger conspiracy. A variance occurs when the charging terms of the indictment are left unaltered, but the evidence at trial proves facts materially different from those alleged in the indictment. Reversal is only warranted for a variance if the defendant shows both: (1) the existence of a variance, and (2) that “substantial prejudice” occurred at trial as a result.

 

The government did not contest that there was a variance in Dove’s trial. However, the question that remained was whether the variance was prejudicial. Dove argued that he was not given proper notice of the charges against him pursuant to the Grand Jury Clause. However, the Second Circuit pointed out that Dove failed to demonstrate that he met the prejudice factors outlined in United States v. McDermott, 245 F.3d at 139 (2d Cir. 2001). In any event, the Court found that Dove had sufficient notice from the indictment that the government would attempt to prove multiple conspiracies.

 

Sufficiency of the Evidence

 

Although the evidence adduced at trial only showed that Dove was involved in “a minimum agreement between Dove and Ingram to engage in transactions,” the Second Circuit determined the evidence was sufficient to convict Dove of conspiracy.

 

Dove asserted that the evidence was insufficient due to the “buyer-seller” exception, which provides that “the mere purchase and sale of drugs does not, without more, amount to a conspiracy to distribute narcotics.” However, the Court determined that this exception was inapplicable in Dove’s case because the evidence demonstrated that Dove and Ingram: (1) enjoyed mutual trust and extensive cooperation; (2) had a history of standardized dealings in wholesale quantities of heroin; and (3) were planning future sales of wholesale quantities of heroin plainly not intended for personal use.

 

Career Offender Designation

 

Finally, the Second Circuit held that Dove was properly sentenced as a career offender. Dove argued that his New York convictions for first and second-degree robbery were inappropriately categorized as crimes of violence under the Career Offender Guidelines. However, recent Second Circuit case law renders Dove’s New York robbery convictions violent within the meaning of U.S.S.G. § 4B1.1.