Timewell Spent

United States v. Timewell, No. 07-4587-cr (2d Cir. June 1, 2009) (Miner, Raggi, Livingston, CJJ)

Here, the circuit held that the district court’s reasons for denying a Crosby remand rendered the sentence procedurally unreasonable. It remanded the case for reconsideration, with instructions.

Background

Gregory Timewell was a major international trafficker in marijuana and hashish. In the late 1990's, he was prosecuted in the Eastern District of New York, where he cooperated with the government. In 1998, he signed a cooperation agreement, which included a list of his assets that he agreed to forfeit to the government. Three years later, it emerged that Timewell had misled the government about some of his assets - millions of dollars hidden in Switzerland. His explanation was that, at the time of his original cooperation, he believed that the money had been appropriated by one of his associates. He later learned that this was not true, but did not tell the government, a violation of his cooperation agreement. As a result of this, in 2001, he pled guilty to making false statements to the government.

Timewell was sentenced in 2004, before Booker. His offense level was 41: a subtotal of 44, which included a 2-level increase for obstruction of justice based on his concealment of assets, less 3 levels for acceptance of responsibility, which produced a 324-to-405-month sentencing range. The government decided to honor cooperation agreement and made a 5K1.1 motion, urging a “substantial” sentence reduction in light of Timewell’s “extensive” cooperation, which included testimony at a co-defendant’s trial. The court downwardly departed, but only to 275 months’ imprisonment.

The Crosby Remand

In preparation for the Crosby remand, Timewell’s counsel again recounted the scope of Timewell’s cooperation, and also noted that one of Timewell’s co-conspirators received a 120-month sentence. Also before the district court were letters from the government, and a former DEA agent who had debriefed Timewell.

At the Crosby hearing, the assistant again praised Timewell for his forthrightness in cooperating, and noted that a different co-conspirator had received a 180-month sentence with no 5K1.1 motion. The government asked the court to give “serious consideration and weight to the argument” that there should not be a “significant disparity” between Timewell and that co-conspirator.

Despite this, the district court remained concerned about Timewell’s earlier failure to disclose some assets. The court entered an order in October 2007 in which it decided not to resentence Timewell. First, the court found no unwarranted sentencing disparity between Timewell and his co-defendants because, unlike them, Timewell violated his cooperation agreement by failing to disclose assets. The court also took into account that the government typically refuses to file a 5K1.1 motion at all when a cooperator has violated the plea agreement, and noted that it had for this reason imposed a sentence “substantially” longer than it otherwise might have.

The Appeal

On appeal, the circuit vacated that order, and remanded the case with instructions. The court identified five procedural errors in the district court’s approach.

First, the lower court did not “respond directly” to the inquiry “required” by Crosby - whether the sentence would have been “materially different from the sentence originally imposed” had the district court known that the sentencing guidelines were not mandatory.

In addition, the court erred in taking into account what it perceived to be the government’s customary practice of voiding plea agreements whenever a defendant violates one of its terms. There was no evidence before the district court that such a practice existed, and it was procedural error to rest a sentence on a “clearly erroneous finding of fact.”

The district court also erred by increasing Timewell’s sentence based on this supposed “practice” in the first place. “That the government usually voids cooperation agreements upon a breach by the defendant should not be a reason to constrain a district court from giving proper effect to a 5K1.1 letter if the government decides to submit [one] notwithstanding the defendant’s breach.”

Fourth, the court erred in its belief that, absent a 5K1.1 motion, the guidelines would have recommended a life sentence. In fact, the range was 324 to 405. A district court errs when it “makes a mistake in its Guidelines calculation.”

Finally, the court mischaracterized Timewell’s unwarranted disparities argument by including more co-defendants in its analysis than Timewell had proposed as a basis for comparison. The district court included defendants who had been sentenced after Timewell was sentenced, but under Crosby a court considering a remand must limit its decision to the circumstances “existing at the time of the original sentence.”

The circuit remanded the case and directed that the district court consider the Crosby inquiry “without consideration of past practices of the government in regard to the rescission of cooperation agreements.” In addition, if the court decides to revisit the original sentence, it should consider (1) the sentencing disparities among co-defendants; (2) the government’s recommendation of a “substantial” departure from the guidelines “in view of Timewell’s excellent cooperation”; and (3) the factors set forth in § 5K1.1 itself.

Reduction Ad Absurdum

United States v. Savoy, No. 08-4800-cr (2d Cir. May 27, 2009)(per curiam)

After a 1998 jury trial on crack distribution charges, Demetric Savoy faced a guideline sentencing range of 188 to 235 months’ imprisonment, and received a sentence at the bottom of the range. In 2008, he moved, under 18 U.S.C. § 3582(c)(2), for a sentence reduction under the retroactive ameliorating amendment to the crack guidelines. With that amendment, Savoy faced a revised range of 151 to 188. However, in the motion, he argued that the court should sentence him to 120 months. The district court granted the § 3583(c)(2) motion and reduced the sentence to 151 months, but refused to go lower. The court believed that the relevant guideline provision, § 1B1.10, was binding and precluded a sentence below the amended range.

On appeal, the circuit affirmed. The language of § 1B.10 is mandatory: the court “shall not reduce the defendant’s term of imprisonment under ... § 3582(c)(2) ... to a term that is less than the minimum of the amended guideline range.” Savoy argued that Booker and its progeny have made this mandatory language advisory. The circuit disagreed, but took the easy way out. Instead of reasoning its way through the issue, the court simply noted that seven other circuits have held that sentencing courts lack authority to reduce a sentence below the amended guideline range, and noted that it was “persuaded by the reasoning of those courts.”

There is, however, a circuit split on the issue, so perhaps it will go up.

Citizen Feign

United States v. Tureseo, No. 07-2933-cr (2d Cir. May 14, 2009)(Miner, Cabranes, CJJ, Berman, DJ)

Juan Tureseo was deported in 1997, after an assault conviction. Immigration agents found him in the United States in 2006, at which time he insisted he was a United States citizen named Danny Ortega. When the agents warned him that it was a crime to lie to them, he admitted the truth.

Tureseo was originally charged only with illegal reentry. As that case wore on, however, he again insisted that he was Danny Ortega, a United States citizen. His wife provided Ortega’s birth certificate to his counsel, who passed it on to the government, asserting that it belonged to his client. As a consequence, the government obtained a superseding indictment charging Tureseo with falsely claiming United States citizenship and aggravated identity theft. Tureseo, now with new attorneys, was convicted after a jury trial.

The Defendant’s Absence

On the second day of the jury charge, with just two short instructions left to give, the defendant was not present. In the jury’s absence, the judge explained that, the defendant had refused to come to court that morning and that the lead defense attorney, after calling chambers, had gone to the jail to prod Tureseo to get moving. The judge waited an hour for them to arrive, then concluded the charge without them, instructing the jury to disregard the fact that Tureseo and one of his attorneys were missing.

Shortly thereafter, lead counsel and Tureseo came to court. Counsel explained that Tureseo’s absence was the fault of a marshal who refused to cuff him, and moved for a mistrial based on the court’s decision to proceed in their absence.

The circuit found that the district court violated Tureseo’s right to be present. The record was unclear as to whether Tureseo knowingly and voluntarily absented himself from the trial. Beyond hearing counsel’s explanation, the district court did not conduct an inquiry into the circumstances of Tureseo’s absence, and whatever inquiry the court had earlier undertaken did not take place on the record. On these facts, the decision to continue the trial in Tureseo’s absence was error.

The error, however, was harmless. The jury was permitted to return to court later to examine Tureseo’s features - a disputed issue in the case - and there was “overwhelming evidence of Tureseo’s guilt” such that there was “no possibility of prejudice.”

Aggravated Identity Theft

Tureseo requested that the court instruct the jury that, for the aggravated identity theft count, the government was required to prove that he knew that the means of identity he used to falsely claim United States citizenship belonged to an actual person. The district court refused, which was error under Flores-Figueroa v. United States, __U.S___, 2009 WL 1174852 (May 4, 2009). Moreover, the error was not harmless: while there was “substantial evidence” that Tureseo knew that Ortega was an actual person at the time he used Ortega’s birth certificate to assert United States citizenship, the evidence “d[id] not all flow in one direction.” Ortega testified that he did not know Tureseo, which suggested that Tureseo did not know of Ortega’s existence, either.

Summary Summary

There have been five summary orders of interest in the past month or so. Here they are:

In United States v. Al Manware, No. 08-2235-cr (2d Cir. May 4, 2009), the court ordered resentencing on a supervised release violation because the district court did not provide the defendant an opportunity to allocute before imposing sentence.

In United States v. McGowan, No. 08-2603-cr (2d Cir. May 4, 2009), the court found no abuse of discretion in the district court's permitting hearsay at a supervised release revocation hearing. The declarant was a 12-year-old child victim and the district court "implicitly found" that her age and the "suggestive nature of the offense weighed in favor of not requiring her testimony." Moreover, the hearsay was trustworthy, since it was supported by "ample circumstantial evidence" such as surveillance photographs and the defendant's own admissions.

In United States v. Scott, No. 08-1489-cr (2d Cir. April 14, 2009), the court held that a restitution order could include lost investment returns from funds that were stolen from variable annuities and IRA's.

In United States v. Hamilton, No. 07-2874-cr (2d Cir. April 14, 2009), the court vacated a sentence under Kimbrough where the district court indicated that it would not consider the defendant's age because the guidelines forbade it. The circuit would not "assume that the district court understood that it had discretion to consider age and its correlation with recidivism."

In United States v. Cayce, No. 08-3784-cr (2d Cir. April 2, 2009), the court remanded the case for further consideration of the defendant's motion to withdraw his plea. It noted that at least two factors supported the motion: he moved to withdraw on the next business day after the plea hearing, and the basis was a statute of limitations defense, a claim of "legal - though not factual - innocence."

The Pursuit of Happy Ness

United States v. Ness, No. 05-4401-cr (2d Cir. May 8, 2009) (Winter, Calabresi, Pooler, CJJ)

Samuel Ness was convicted of money laundering offenses in connection with his armored car business, which received and distributed millions of dollars in narcotics proceeds. He was sentenced to 15 years in prison. On his first appeal, the circuit affirmed. He then sought certiorari in the wake of Regalado Cuellar v. United States, 128 S.Ct. 1994 (2008), and the Supreme Court vacated the affirmance and remanded the case for further consideration. This time, the circuit found that the evidence was insufficient and reversed the conviction.

Cuellar held that, for transportation money laundering offenses, the government must prove that the defendant’s purpose, “in whole or in part, was to conceal the nature, location, source, ownership or control of the funds.” A showing that a defendant hid funds during transportation is not sufficient to support a conviction, since there is “a difference between concealing something to transport it, and transporting something to conceal it.”

Ness was convicted of two counts. A substantive transaction money laundering count under 18 U.S.C. §§ 1956(a)(1)(B)(i), and a conspiracy with three objects:transaction money laundering, transportation money laundering under 1956(a)(2)(B)(i), and engaging in monetary transactions in unlawful funds under 18 U.S.C. § 1957(a).

With respect to the § 1956 charges, the circuit found no evidence that Ness’ “purpose in transporting the [drug] proceeds was to conceal” the nature, location, source, ownership or control of the money. All the government proved was “how” Ness moved the money, not “why.” Even Ness’ “avoidance of a paper trial” by hiding the proceeds and using code words showed “only that he concealed the proceeds in order to transport them. Under Cuellar, such evidence is not sufficient to prove transaction or transportation money laundering.”

A different analysis doomed the § 1957 object. This statute requires the government to prove a “monetary transaction” that involved a “financial institution.” Here, the evidence on that element was insufficient. “Financial institution” has a long and complex definition, comprising the twenty-six types of institutions listed in 31 U.S.C. § 5312, plus several others described in related regulations. Neither Ness nor his armored car company qualified under any of these definitions.

On appeal, the government relied solely on one of the regulations, 31 C.F.R. § 103.11, which covers money transmitters and the like. The circuit first held that since the government did not present this theory to the jury it “cannot support an affirmance.” In any event, it lacked merit, since Ness’ business lacked the features that the regulation requires of a money transmitter.

Extension Headache

United States v. Vargas, No. 08-1542-cr (2d Cir. May 5, 2009)(Calabresi, Livingston, CJJ, Restani, JCIT)

In connection with a drug conviction, Raphael Varas was sentenced to a five-year term of supervised release. In January of 2008, he pled guilty to a supervised release violation. At his sentencing, the district judge said “the sentence is going to be six months’ home confinement,” and entered a written judgment providing that Vargas “shall be on supervised release for ... [s]ix (6) months home confinement and electronic monitoring.” The court made no mention of any supervised release beyond the period of home confinement.

Two months later, however, the court entered an “Amended Judgment” that contained the same six-month period of home confinement but also continued the original five-year term of supervised release. Vargas appealed from the Amended Judgment, arguing that, since the court revoked his supervised release in January, absent a new violation, the court could not continue the original term two months later. The circuit disagreed, but reversed due to a procedural error.

The circuit viewed the Amended Judgment as an effort by the district court to “correct” an “omission” from the January 2008 Judgment. The court rejected Vargas’ argument that the court’s failure to mention any term of supervised release beyond the home confinement in the January 2008 Judgment meant that his sentence would end after the home confinement period. The revocation did not “necessarily eliminate” the possibility that Vargas’ supervised release might be reinstated, since the court did not “terminate” the supervised release. The court also rejected Vargas’ argument that the district court intended to impose six months of home confinement in lieu of the nearly four years of supervised release that Vargas would otherwise still have had to serve, calling that an “exceedingly odd” punishment for a violation.

On the other hand, the circuit also rejected the government’s argument that, under the January 2008 Judgment, the original term of supervised release “remained intact,” with the added condition of home confinement. The district court could have sentenced Vargas to continued supervised release after the home confinement, but did not “explicitly do so.”

In the end, since the January 2008, Judgment did not “clearly continue or terminate” the original supervised release term, this case turned on the circuit’s view of a district court’s authority to correct the judgment by later extending the term of supervised release. The court found that authority in 18 U.S.C. § 3583(e)(2), which provides in relevant part that a court “may, after considering the factors set forth in [various subsections of 18 U.S.C. § 3553(a)] extend a term of supervised release ..., and may modify ... or enlarge the conditions ... at any time prior to the expiration or termination of the term.” Since this section “explicitly states” that a court can “extend a term of supervised release ‘at any time’ prior to its expiration ... the district court could extend Vargas’ supervised release term up to the allowable limit” after considering the relevant § 3553(a) favors.

While such extensions normally occur where “new circumstances” - like a violation of a condition - require extension to further the “general punishment goals” of § 3553(a), a district court “may correct an inadvertent omission that runs against the policies of section 3553(a) by extending supervised release even in the absence of a new violation.” Thus, here, while the district court had the authority to correct its “apparent” error, it could only extend the term if it considered the relevant § 3553(a) factors. Since the court did not do so here, the circuit vacated the Amended Judgment and remanded the case to the district court to first consider the statutory factors before determining whether an extension is appropriate.

If You Love Her, Let Her Go

United States v. McGee, No. 07-4509-cr (2d Cir. April 24, 2009)(Leval, Katzmann, Livingston, CJJ)

A Rochester police officer responded to 911 call at defendant McGee’s home. When the officer arrived, he saw McGee running away through the backyard. McGee’s girlfriend was outside the house. She told the officer that she lived there with McGee, but was trying to move out. She had packed her bags and put them on the front porch, but McGee, to prevent her from leaving, had grabbed her bags, put them back inside, locked the door and taken away her keys. She asked the officer to break down the door so she could retrieve her belongings. He refused, but once she proved she really lived there, he let her break in herself.

The officer then accompanied her while she collected belongings. When she observed that McGee stored guns in the front closet, the officer asked for permission to search and she agreed. The officer found four firearms, ammunition and a bulletproof vest. In the bedroom, the officer saw photographs protruding from under the mattress. The girlfriend gave him permission both to look at and keep them. They showed McGee holding a gun.

McGee was convicted of possessing the firearms. On appeal, he challenged the denial of his motion to suppress, and the circuit affirmed. The court found that officer reasonably concluded that the girlfriend had the authority to consent to a search.

McGee relied primarily on Moore v. Andreno, 505 F.3d 203 (2d Cir. 2007), in which a girlfriend’s consent was found to be ineffective. In Moore, the girlfriend gave the police consent to enter and search Moore’s study after she cut a lock on the door. The lock had been placed on the door to keep her out, and the police knew it. McGee argued that his girlfriend had similarly been locked out and thus lacked “access” to the house.

While the court found this argument “by no means unreasonable,” it nevertheless disagreed. A third-party’s access to a premises “depends on the understandings communicated by the titular owner to that person.” The girlfriend in Moore lacked access to the study because the lock was intended to keep her out.

Here, by contrast, although McGee had locked the girlfriend out of the house, his purpose was different. “McGee did not lock [her] out of the house and take away her key with the intention of excluding her from continuing to live in his house with him. ... To the contrary, McGee locked her bags in the house and locked her out temporarily in an effort to prevent her from leaving the house. Far from seeking to expel her from the house, his conduct was designed to insure that she would continue to reside in it.” Accordingly, the girlfriend had “access” to McGee’s house in the sense in which the term is used in analyzing this type of Fourth Amendment issue.

Porn At Home

United States v. Polouizzi, No. 08-1830-cr (2d Cir. April 24, 2009)(Leval, Katzmann, Raggi, CJJ)

Defendant - referred to in the opinion as Peter Polizzi - was convicted by a jury of eleven counts of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B), and twelve counts of receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2), after the jury rejected his insanity defense. Post-trial, he made a Rule 33 motion, arguing that the district court erred by refusing to inform the jury that the receipt counts carried a five-year mandatory minimum. Based in part on a post-verdict colloquy with the jurors that revealed that at least some of them would have accepted the insanity defense had they known of the mandatory minimum, the court granted the motion on the receipt counts only. Both sides appealed.

The Defendant’s Appeal

A. Double Jeopardy

1. Multiple Counts of Possession

Polizzi argued that all but one of his possession counts should be vacated because possessing a single collection of child pornography on a single date could constitute only a single violation of § 2252(a)(4)(B). The circuit agreed, and found plain error, as well.

The statute makes it a crime to possess “1 or more” matters that contain “any visual depiction” of an image containing child pornography. It also contains an affirmative defense if the defendant “possessed less than three [such] matters.” The court rejected the government’s claim that each “matter which contains” a prohibited image is a separate unit of prosecution under this section.

Under the “clear language” of the statute, a person “who simultaneously possesses multiple ... matter[s] containing a visual depiction of child pornography” is subject to “only one conviction under 18 U.S.C. § 2252(a)(4)(B).” The language “1 or more” indicates that a person commits only one violation of the statute by possessing more than one matter containing child pornography. Unlike the word “any,” which may be ambiguous in setting the applicable unit of prosecution, the phrase “1 or more” clearly “specifies the plural.” This reading of the statute is bolstered by the existence of the affirmative defense, which “necessarily contemplates that a person who possessed two matters containing prohibited images would face a single charge of violating” this section.

2. Multiple Counts of Receipt

The court considered a similar argument with respect to the receipt counts under § 2252(a)(2), which criminalizes the receipt of “any” prohibited images. The court found the term “any” ambiguous as to setting the applicable unit of prosecution; under the rule of lenity, absent evidence of a contrary congressional intent, “a person who receives multiple prohibited images in a single transaction can only be charged with a single violation of § 2252(a)(2).” Here, the trial evidence showed that Polizzi received prohibited images on four distinct dates, with no evidence of multiple and distinct transfers on each of those dates. Thus, Polizzi could only be convicted of four receipt counts - “one for each date on which he received images - but not multiple receipt counts per day.”

3. Simultaneous Convictions of Possession and Receipt

Finally, Polizzi argued that he could not be convicted of both possession and receipt, because possession is a lesser included offense of receipt. The court noted that both the Third and Ninth Circuits have so held, and found those cases “persuasive,” but did not actually rule on the issue. Polizzi “was charged with possessing certain images of child pornography the receipt of which did not form the basis for a separate receipt count.” Thus, for those four counts, his possession was not incident to an act of receiving for which he has already been punished.

B. Other Claims

At trial, Polizzi tried to get the district court to force the government into an Old Chief-type stipulation that the images were child pornography, so as to prevent them from being introduced into evidence. The district court would not do it, and the circuit affirmed. Here, in light of Polizzi’s insanity defense, the “specific nature and content of the images were relevant” and the “risk of unfair prejudice was minimized by the mode of presentation.”

He also challenged the court's charge on the insanity defense, but the court refused to consider the claim, finding that it was “waived” by his affirmative acceptance of the instruction, and not merely “forfeited” by a lack of objection, which would have left open the possibility of plain error review.

The Cross-Appeal

Although although the court rejected Polizzi’s claim that the Sixth Amendment required the jury to be informed of the mandatory minimum, the court did not agree with the government that district courts can never inform a jury of a mandatory minimum. Nevertheless, it reversed the grant of the Rule 33 motion.

After reviewing the cases, the court held that district courts have discretion to instruct the jury on the applicable mandatory minimum in some circumstances: “Without attempting to define the boundaries of a district court’s discretion in this regard, we recognize the possibility ... that circumstances may exist in which instructing the jury on the consequences of its verdict will better ensure that the jury bases that verdict solely on the evidence and will better discourage nullification.”

Here, the court did not reach the question whether the district court would have had the discretion to inform the jury of the mandatory minimum at Polizzi’s trial. Even if, arguendo, it had, it was “certainly within the trial court’s discretion to decline to,” which it did, and thus the standard for grating a new trial under Rule 33 - “a compelling reason involving substantial unfairness” - was not met.

Caboose of Discretion

United States v. Borden, No. 08-1625-cr (2d Cir. April 22, 2009: amended opinion) (Cabranes, Hall, CJJ, Sweet, DJ)

Every other circuit to consider the question has concluded that a district court’s denial of a crack retroactivity motion under 18 U.S.C. § 3582(c)(2) is reviewed for abuse of discretion. With this decision, the Second Circuit joins the train.

Applying that standard here, the court affirmed. The district court reviewed the relevant records, considered the § 3553(a) factors and cited an appropriate reason - the danger that Borden posed to the community. In light of Borden’s lengthy criminal history, the district court was free to reject the Probation Department’s conclusion that Borden no longer “pose[d] a threat to society.”

Khat Red-Handed

United States v. Abdulle, No. 06-3647-cr (2d Cir. April 22, 2009) (Newman, Sotomayor, Katzmann, CJJ)

Defendant Mohamed was convicted of distributing cathinone, the active ingredient in khat leaves, and challenged the sufficiency of the evidence against him. The circuit affirmed.

The difficulty, as always in khat cases, is the complex regulatory scheme for this substance. See Krazy Khat, posted September 27, 2008. Khat itself is not a controlled substance. Cathinone, the stimulant present in the leaves when it is first harvested is a Schedule I controlled substance; cathine, the substance that cathinone turns into after a few days, is a Schedule IV controlled substance and is not always illegal.

Mohamed was specifically charged with trafficking in the Schedule I substance. Thus, the government was required to prove that he knew that he possessed and intended to deal in a controlled substance, and that he in fact possessed cathinone. His sufficiency claim was premised on a claim that there was no evidence that he knew cathinone was a controlled substance.

The circuit disagreed. First, three years before this arrest, Mohamed was arrested and charged with receiving a 150-pound shipment of cathinone in Minneapolis. This was “direct evidence of his knowledge that cathinone is a regulated substance under United States law.” Moreover, the trial evidence as to the charged activity revealed that he attempted to conceal his efforts, further supporting the inference that he knew the khat he was involved with contained an illegal substance.

In addition, the government specifically proved that Mohamed sought to distribute cathinone, and not cathine, by showing (1) his efforts to move the khat leaves quickly, and (2) that the khat leaves were wrapped banana leaves to keep them moist. These were both reasonably found by the jury as efforts to preserve the cathinone.

The Acquittal That Wasn't

United States v. McCourty, No. 07-3862-cr (2d Cir. April 9, 2009) (Miner, Sotomayor, Katzmann, CJJ)

Background

At McCourty’s drug trial, one of the counts in the indictment alleged that he possessed with the intent to distribute both a quantity of cocaine and more than five grams of crack. The facts underlying this count were unusual: McCourty ran away from some police officers and dropped a bag containing a small amount of both drugs on the street. Twenty minutes late, the officer found him at his grandmother’s apartment wearing a backpack that contained more than five grams of crack.

Before trial, defense counsel noted a duplicity “problem” with this count and asked for a “special interrogatory” to avoid a general verdict that would not reveal the type or quantity of drugs the jury found that McCourty had possessed. The district judge addressed this problem in the verdict sheet, which split the count into two questions. Part (a) asked whether McCourty possessed drugs with the intent to distribute on the street and part (b) asked whether he possessed drugs with intent to distribute in the apartment. Part (b) had a follow-up: if the jury answered “guilty” on this question, it had to decide whether there was more than five grams of crack. In the end, the jury could not reach a verdict on question (a) and acquitted on question (b). Post-trial, the defense moved for a directed verdict on question (a), since the wording of original count mentioned “five grams or more” of crack on that date. The defense argued that the acquittal on question (b) precluded further prosecution as to the events of that date.

The court denied the motion and, after a retrial, McCourty was convicted of what was left of this count - the possession of cocaine and crack on the street. The court sentenced him to seventy-eight months’ imprisonment, the bottom of the guideline range.

The Appeal

On appeal, McCourty argued that by splitting the count, the district court constructively amended the indictment, in violation of the Fifth Amendment’s Grand Jury Clause. In addition, he argued that the acquittal on question (b) was an acquittal of the entire “offense,” and thus that the Double Jeopardy Clause should have prohibited a retrial on question (a). The circuit disagreed and affirmed.

First, it held that there was no constructive amendment because “neither the trial evidence nor the jury charge altered” the count, which itself identified two separate bases for the offense - that the district court “distinguished the two bases of liability is of no consequence.” All the verdict sheet did was identify the apartment as the place of one instance of drug possession and the street as another. This did not “alter any element of the single crime of drug possession occurring on that date.” “Indeed” - according to the circuit -“we have encouraged such special verdict sheets or interrogatories in cases where the indictment may be ambiguous.”

As for the double jeopardy claim, the court held, “Where the jury is directed to make specific findings as to the separate bases of liability set forth in the indictment, we see no danger of a double jeopardy violation.” Accordingly, a defendant may be retried for a portion of a count “to which he was neither acquitted nor convicted provided the jury is particular about its findings with respect to the different theories of liability contained in that count.”

At the brighter side, however, the court granted McCourty a Regalado remand.

Straddle Sore

United States v. Josephberg, No. 07-3958-cr (2d Cir. April 9, 2009) (Kearse, Sack, Katzmann, CJJ)

Background - Multiple Acts of Tax Fraud and Evasion

A “straddle” is a type of tax shelter transaction involving the simultaneous ownership of a contract to buy a commodity for delivery in a future month and a contract to sell the same amount of the same commodity in a different future month. Either the purchase or sale contracts can be sold at a loss. Josephberg’s company sold interests in limited partnerships that invested in such straddle transactions. The partnership owned both contracts to buy and contracts to sell, and each year it would sell the type of contract that had decreased in value, to realize the losses. Individual partners would claim their shares of the losses as deductions on their tax returns for that year, and the partnership would defer the sale of the offsetting profitable contracts until the following year. The amounts of the transactions would escalate each year so that the next year’s sales losses would offset the gains that had been straddled from the year before.

An ordinary straddle transaction is not risk free because there is no assurance that the gain on the second leg will be equal in amount fo the loss on the first. But Josephberg and his associates sought to structure their transactions in ways that would ensure that any profit was always the same as the loss. In 1981, Josephberg’s partnerships’ accumulated deferred gains were $140 million; absent an offsetting loss, they would have owed taxes on those gains in 1982. However, due to a change in the 1981 tax law, the gains could not be offset by further straddle tax shelters. Instead, Josephberg agreed with a bond dealer to artificially generate tax losses in T-bill transactions by using repurchase agreements. These arrangements were used to “simulate” a straddle.

Overall, the straddles were rigged to avoid any true risk; the transactions were engaged in not to produce profits but to generate losses that investors could deduct from their income at tax time. Indeed, the Josephberg’s tax returns for the relevant nine-year period showed only $41,000 in tax liability on more than $3.6 million in income.

In 1986, IRS billed Josephberg for $372,000 in taxes based on its rejection of losses from some of the straddle transactions. He appealed administratively, and lost. By 1993, the IRS wanted that sum plus an additional $548,000 for a different tax year. Ultimately, the tax court entered judgment against him, and also sought additional taxes for other years. In response to the IRS’ effort to collect the debt, Josephberg repeatedly maintained that all his assets had already been seized by the IRS.

In truth, however, he was hiding his income by, for example, running it through shell entities and securities accounts in the names of his wife and children.

For a period of 20 years, from 1979-1998, Josephberg claimed or carried over a substantial net operating loss stemming from the straddle transactions. Even after a 1993 notice from the IRS that those tax shelters were disallowed because they were rigged, risk-free transactions that “generated artificial tax losses” and not “bona fide economic transactions,” he continued to do so.

In 1997 and 1998, Josephberg he failed to pay any employment taxes for his family’s live-in housekeeper, and he neither filed tax returns nor paid any taxes from 1999 to 2003.

Josephberg also engaged in health care fraud, by submitting false tax forms to Oxford to provide coverage for his wife and charge a group insurance rate to his company.

Josephberg was convicted of seventeen counts of tax evasion and both tax and health care fraud. By this time, his tax debt, including interest and penalties was $17,000,000.

The Appeal

Josephberg’s primary challenges on appeal were to the sufficiency of the evidence. All were unsuccessful, and only two are summarized here.

He first argued that there was insufficient evidence of “substantial tax due” with respect to the tax evasion counts because he “mounted a strong challenge” to the IRS tax assessment certificates that showed the tax debt. But this was merely a challenge to the weight of the evidence, not its sufficiency. Nor did the government’s case rest on the certificates alone. The government also introduced notices of deficiency sent to Josephberg informing him of the amounts due and tax court judgements rejecting his challenges to some of the assessments.

Josephberg also claimed that there was insufficient evidence that he engaged in any affirmative act of evasion, claiming that the government’s witnesses retracted their direct testimony on cross-examination. Not only did the court disagree with this characterization of the testimony, it again noted that the claim itself was poorly disguised challenged to the weight of the evidence.

Next, he claimed that the charge that he willfully failed to file tax returns or pay taxes between 1999 and 2003 violated the Fifth Amendment. He argued that, since in those years he was the subject of an ongoing investigation into the propriety of his continued claims of a net operating loss, the very filing of returns for those years would incriminate him. But it is “well settled that the Fifth Amendment does not provide a blanket defense for a failure to file tax returns,” even where there is an ongoing investigation into the taxpayer’s affairs.

At sentencing, Josephberg disputed the court’s use of the 2006 guideline manual, under which the tax loss included interest and penalties because he was convicted of willful evasion of payment. Until a 2001 amendment, the tax guideline always excluded interest and penalties, and Josephberg argued that since his tax evasion offenses were completed by 1998 it violated the Ex Post Facto Clause to use the 2006 manual. The district court held that he had committed a “continuing offense which straddled the dates of the guidelines,” and the circuit found no abuse of discretion. It noted that Josephberg’s failure to file from 1999 to 2003, by his own account, was an effort to avoid assisting in his prosecution for having claimed net operating losses through 1998.

Object Permanence

United States v. Marte Robles, No. 07-1013-cr (2d Cir. April 9, 2009)(Straub, Hall, CJJ, Eaton, DJ)(per curiam)

In this case, the court was called upon to construe Application Note 4 to U.S.S.G. § 1B1.2. Section 1B1.2(d) provides that a “conviction on a count charging a conspiracy to commit more than one offense shall be treated as if the defendant had been convicted on a separate count of conspiracy for each offense that the defendant conspired to commit.” The application note advises that “[p]articular care must be taken” when applying this subsection because there are cases where “the verdict or plea does not establish” which offenses were “the object of the conspiracy. In such cases, [subsection(d)] should only be applied with respect to an object offense alleged in the conspiracy count” if the court, were it sitting as the trier of fact, “would convict the defendant of conspiring to commit that object offense.”

After a jury trial, defendant Marte was acquitted of several substantive Hobbs Act robbery charges. He was convicted only of a single Hobbs Act conspiracy count that alleged, generally, that he and others robbed drug dealers in the Bronx and Manhattan, but did not identify any specific robberies as the object of the conspiracy. At sentencing, however, the district court concluded that the government had proven beyond a reasonable doubt that he conspired to commit two particular robberies, considered them to be the offenses that were the object of the conspiracy, and took them into account when calculating Marte’s guideline range.

On appeal, Marte argued that this was a misapplication of § 1B1.2(d) and Note 4, because those provisions prohibit sentencing enhancements based on the objects of a conspiracy are not specifically identified in the conspiracy count of the indictment.

On its face, Marte’s position would seem reasonable, since it appears to be consistent with the plain language of the application note. But the circuit disagreed. It held that the emphasis of Note 4 was “not on the specificity of the conspiracy charge but on the standard of proof that must be satisfied to permit a court to find that a defendant conspired to commit particular object offenses and then to treat such findings as a sentencing factor in determining the defendant’s offense level.”

The court also rejected Marte’s Sixth Amendment challenges to the sentence. There is no Sixth Amendment violation in a conspiracy sentence that is based on objects not alleged in the conspiracy count of an indictment. Nor was it true that the district court based the sentence on “the same conduct” that Marte was acquitted of. The substantive commission of a robbery is not “the same conduct” as conspiring to commit that robbery.

A Small Triumph

United States v. Hertular, No. 07-1453-cr (2d Cir. April 6, 2009) (Straub, Raggi, CJJ, Session, DJ)

Robert Hertular was convicted after a jury trial of running a large-scale cocaine importation ring, obstruction of justice, and misdemeanor assault of a federal officer under 18 U.S.C. § 111. He was sentenced to 400 months’ imprisonment on the drug counts, 120 months concurrent on the obstruction, and 12 months concurrent on the assault. On appeal, the circuit agreed that the evidence was insufficient on the assault count. It reversed that conviction and remanded the case for resentencing.

Background

Hertular was originally arrested by local authorities in Belize, and charged with cocaine trafficking. Once released on bail, he initiated contact with a DEA agent, Vincent Williams, who was stationed in Belize, and expressed an interest in cooperating with American authorities. After two meetings in 2001, Williams told Hertular that the DEA would not use him as an informant.

In 2003, Williams was involved in a different drug investigation. Hertular appeared on the scene and met with the DEA’s informant. Hertular told the informant that the DEA was nearby and offered to “get rid of” the agents. After Hertular left, Williams followed him, and pulled him over, warning him to “be mindful of his associations.” In response, Hertular told Williams that he was “willing to kill a DEA agent” or US Embassy employee. Williams reported the threat to the Embassy, which implemented extra security measures. Hertular was not charged with this threat.

At the end of 2003, the DEA opened a formal investigation into Hertular’s drug activity. On December 25, 2003, Hertular called a second DEA agent, Raymond Kelly, on his cell phone and requested a meeting. Both Kelly and Williams attended the meeting, which took place in Kelly’s car. Hertular told them that he knew he was a target and was likely to be indicted soon. When the agents denied this, he played them a recording of a telephone conversation between Kelly and an informant regarding one of Hertular’s co-conspirators. He told the agents that DEA telephones had been tapped, that he had a source of information within the Embassy, and that he knew the identities of several DEA informants.

Later, Hertular became confrontational. He told the agents that it would be in their “best interest to back down from the investigation because he would have to protect himself.” When Kelly asked whether DEA agents in Belize were in jeopardy, Hertular said that they had better “protect” themselves and “watch [their] backs, because [his] organization would hire hit men from Colombia or Mexico to take [the agents] out.”

About two weeks later, Hertular was indicted in the Southern District of New York. In July of 2004 was extradited to the United States.

The Insufficient Evidence of Assault

The circuit held that the evidence was insufficient on the assault charge because 18 U.S.C. § 111 “requires some proof of the assailant’s present ability to inflict injury giving rise to an objectively reasonable apprehension of immediate harm."

The statute makes it a crime to “forcibly” assault, resist, oppose, impede, intimidate or interfere with a federal officer engaged in the performance of official duties. The word “forcibly” limits the scope of the statute to “fewer acts than would fit the definition of the unmodified verbs alone.” Although the actual use of force is not necessary to satisfy the force element of § 111, the threat must “objectively inspire fear of pain, bodily harm, or death that is likely to be inflicted immediately.”

Here, the evidence was sufficient as to the first prong - inspiring fear - but not for the immediacy prong. An “implied threat to use force some time in the indefinite future” is insufficient to support a § 111 conviction. Here, that is all the government proved.

Hertular’s threats to the agents “did not indicate by word or deed that he was then armed or even that he was contemplating any present action against” them. Rather, he threatened them with “death at some unspecified future time.” Indeed, the threat would only come to fruition if the DEA continued its investigation of Hertular and Hertular’s organization hired hit men from other countries and brought them to Belize to carry out the threat. Since these conditions “suggest[ed] the passage of some time, a jury could not reasonably find that, when Hertular threatened the agents, he had the apparent present ability to take their lives.”

Obstruction of Justice

This same conduct was sufficient, however, to satisfy the obstruction of justice statute, 18 U.S.C. § 1512(b)(3), which makes it an offense to use threats or intimidation to hinder the communication of information relating to a federal crime to a law enforcement officer. “On this record, a reasonable factfinder could easily have concluded that when Hertular told the agents it was in their ‘best interest to back down’ from the investigation and warned them that ‘hit men from Colombia or Mexico’ would be hired to take [them] out,’ ... his specific intent was to hinder or prevent not simply the filing of an indictment but any communication to or among federal law enforcement officials that could lead to his indictment.”

The Remedy

Generally, when the circuit overturns even one count of a multi-count conviction it remands the case for de novo sentencing proceedings. Here, although the reversal of a single misdemeanor count made little change to the “factual mosaic” of the case, the change to the “constellation of offenses” relevant to sentencing was sufficient to warrant resentencing. It is up to the district court to decide whether a conviction on three, rather than four, counts, affects its assessment of the statutory sentencing factors.

Kopp Out

United States v. Kopp, No. 07-797-cr (2d Cir. April 6, 2009) (Kearse, Katzmann, CJJ, Chin, DJ) (per curiam)

James Charles Kopp was sentenced to life plus ten after a jury convicted him of killing an abortion provider, in violation of 18 U.S.C. § 248, and discharging a firearm in connection with a crime of violence. He raised a host of issues on appeal, all of which were quickly dispatched by the court.

First, he complained that some of his pretrial statements were improperly admitted because they occurred when he was represented by conflicted counsel. But since his motion to suppress the statements was untimely, he was not entitled to relief. Moreover, he testified at trial and admitted the killing, which was in substance the content of the statements he sought to have suppressed.

He also complained that the admission of redacted versions of the statements violated the rule of completeness because the omitted portions went to his “mens rea” and would have shown that he did not intend to kill the doctor. But intent to kill is not an element of the offense - the statute only requires an intent to injure.

Finally, he complained that the district court erred in precluding him from asserting, and the jury from considering, a justification defense. According to the circuit, it is not clear that a federal court can recognize a necessity defense that is not provided by statute. But even if it can, here the district court correctly concluded that the evidence in support of such a defense was legally insufficient.

Summary Summary

Here’s the latest crop:

In United States v. Ramirez, No. 08-2771 (2d Cir. April 1, 2009), the district court committed a procedural sentencing error in the defendant’s favor by refusing to calculate the applicable Guideline range based on the actual drug quantity and instead deferring to the jury’s finding that less than 500 grams of cocaine was attributable to the defendant. But the circuit found that the error was harmless since there was no doubt that the district court would have imposed the same sentence absent the error.

In United States v. Soto, No. 08-0654-cr (2c Cir. March 25, 2009), two defendants challenged their lengthy sentences on various procedural grounds. The circuit affirmed, but “pause[d] ... to note the striking size of the discrepancies between the sentences estimated at the time of the ... pleas and those that were imposed.” The court agreed that it was “understandable if they came as a considerable shock to the defendants when they were imposed” and had “some concern that they may therefore have an adverse impact on the willingness of criminal defendants to engage in similar plea negotiations in the future.”

In United States v. Carter, No. 07-5756-cr (2d Cir. March 25, 2009), the circuit vacated a 5-year consecutive 924(c) sentence under United States v. Williams, 2009 WL 563644 (2d Cir. March 5, 2009), even though the issue was not raised in the district court.

Publish and Perish

United States v. Samas, No 05-5213-cr (2d Cir. March 24, 2009) (Jacobs, Wesley, Hall, CJJ) (per curiam)

This case was originally decided by summary order in December of 2009. On the government’s motion, the court withdrew the summary order and issued this published decision in its place.

The decision resolves two recurring claims with respect to mandatory minimum sentences. First, the court has long held that the federal drug statutes' disparate treatment of cocaine and crack offenses does not violate equal protection. Samas made the same equal protection claim here, arguing that the issue should be reconsidered in light of Kimbrough. The circuit disagreed: “Kimbrough bears upon the discretion of district judge to sentence within the maximum and minimum sentence ‘brackets’ [but] does not disturb our precedents rejecting challenges to the constitutionality of the mandatory sentencing scheme” for drug cases.

Samas also argued that the parsimony clause in § 3553(a) conflicted with the mandatory drug sentencing provisions. But the circuit made clear that a sentencing court must impose the mandatory minimum sentence even if it would reach a different result by considering § 3553(a). That section applies “except as otherwise specifically provided,” a clear reference to statutes that prescribe a mandatory minimum.

Summary Summary

So far, there have been three summary orders of note in March. Let’s take a look.

In United States v. Alkhabbaz, No. 07-4679-cr (2d Cir. March 23, 2009), the defendant was convicted of fraud and money laundering offenses. The circuit held that it was error to impose a sentence enhancement for using a minor, since the use of the minor was in connection with the underlying fraud, not the money laundering offense itself. The court also strongly suggested that the government could not seek to correct on remand a sentencing error in the defendant’s favor that it did not appeal in the first instance.

In United States v. Madoff, No. 09-1025-cr (2d Cir. March 20, 2009), the court affirmed the denial of bail pending sentencing. The court agreed that Madoff posed a risk of flight since his age and exposure to a long prison sentence gave him an incentive to flee. He also had the means to flee, despite his protestations to the contrary; the district was “not required to treat this defendant’s financial representations as reliable.” The court also found “substantial evidence” that Madoff posed a risk of economic harm to the community.

In United States v. Stuckey, No. 08-0291-cr (2d Cir. March 18, 2009), it was error to admit un-Mirandized statements on the government’s main case on the theory that the defense “opened the door” to them, since the statements were not used to impeach the defendant’s testimony. Trial counsel did not object on this ground, however, and the court found no plain error.

For Your Information

United States v. Morales, No. 07-4202-cr (2d Cir. March 18, 2009) (per curiam)

Morales was charged in a two count drug indictment; one count had a 5-year mandatory minimum, under 21 U.S.C. § 841(b)(1)(B), while the other had a 10-year mando under § 841(b)(1)(A). Before trial, the government filed a prior felony information pursuant to 21 U.S.C. § 851(a)(1). This had the effect of doubling the mandatory minimum to which Morales was exposed. But the information specifically indicated that Morales would be subject to the “enhanced penalties of Title 21, United States Code, Sections 841(a), 841(b)(1)(B) and 851.” After trial, but before sentencing, when it is otherwise to late to file an information, the government filed an amended information referencing § 841(b)(1)(A).

At sentencing, Morales complained that he went to trial because he believed that the only mandatory minimum he faced was 10 years: the 5 years under § 841(b)(1)(B) - which was doubled by the prior felony information - and the 10 years under § 841(b)(1)(A), which he indicated he believed the government had refrained from doubling in an exercise of its discretion. Not an unreasonable thought, since the defendant was, at the time, 67 years old.

The government, on its part, noted that § 851 does not require that a prior felony information identify the statutory basis of the proposed enhancement at all. It claimed that it had simply made a clerical error, and that the amended information corrected the error, which is expressly permitted by the language of § 851(a)(1). The district court agreed, found that Morales was subject to a 20-year mandatory minimum, and imposed it.

On appeal, the circuit vacated for further findings. It agreed that § 851 does not require the government to specify the basis of the enhancement or its length, but looked beyond the language of the statute to determine its purpose. In fact, § 851 has two purposes. The first, not implicated here, is to allow the defendant to contest the accuracy of the claim that he has a prior felony conviction. But the second, inherent in the statute’s requirement that the information be filed before trial or the entry of a guilty plea, is that the defendant is supposed to have “ample time to determine whether to enter a plea or go to trial and plan his trial strategy with full knowledge of the consequences of a potential verdict.” After all, if an opportunity to question the prior conviction were all that was required, “notice after conviction but prior to sentencing would suffice.”

Accordingly, the court held that “a prior felony information that, like this one, could mislead a defendant as to the minimum penalty he or she would face after a jury’s conviction undermines Congressional intent.” Given this, it is “not possible to determine the appropriate remedy, if any, until it is known whether the mistake in the prior felony information adversely affected defendant’s decision to go to trial or his trial strategy.” The court therefore remanded the case to the district court for further findings on “(1) whether defendant understood the citation to 841(b)(1)(B) and the absence of a citation to 841(b)(1)(A) as an indication that the government had elected not to seek Section 841(b)(1)(A)’s higher mandatory minimum; and (2) if so, whether defendant’s misapprehension adversely affected trial strategy or triggered a decision to go to trial rather than to accept or seek a plea bargain.”

In a footnote, the appellate court also pointed out that the district court could still impose a 20-year sentence, even if it concluded that Morals was not subject to a 20-year mandatory minimum.

Seizure Disorder

United States v. Simmons, No. 07-5127-cr (2d Cir. March 17, 2009) (Pooler, Sotomayor, Katzmann, CJJ)

This appeal tackles an interesting search and seizure issue, a challenge to the discharge of a juror, and a sentencing issue. Simmons prevailed only on the sentencing claim.

The Anonymous Tip

Police officers received an radio run reporting an anonymous 911 call about an assault, with “a possible gun involved,” in progress. They sped to the address, which was in a neighborhood known for drug and gang activity, and could see no evidence of an assault. Simmons, along with two others, was inside the lobby of the building, and matched the description in the radio run. There was no indication that he was engaged in an assault.

The officers entered the lobby. As Simmons walked toward the front door, one of them ordered him to stop. He did not. The officer ordered him to stop a second time, and this time Simmons complied. The officer asked him to take his hands from his pockets and, when Simmons did not, asked him again, but he still did not. This prompted the officer to grab Simmons’ right side, where he felt a gun. In fact, Simmons had two guns, one in each pocket. In the district court, he unsuccessfully moved to suppress the guns, and the circuit, noting that this “case [was] close,” affirmed.

It began by holding that an anonymous tip that reports an ongoing emergency can be deemed more reliable, and hence requires less corroboration, than one that merely reports “general criminality.”

Next, the court held that Simmons was “seized” when the officer ordered him to stop, and rejected the government’s argument that his post-stop conduct - specifically, his refusal to remove his hands from his pockets - could be a factor in determining whether the officers had reasonable suspicion for the initial stop. The grounds for a stop may be based on events that occur after the order to stop is given “only in cases where the suspect attempts to flee from the policed after being ordered to stop” because the seizure does not occur until the person is apprehended. But since the “grounds for a stop must exist at the time of the seizure,” and since Simmons was seized when he obeyed the second order to stop, the events that occurred after he complied “do not factor into the analysis of reasonable suspicion for the initial stop.”

Ultimately, the court concluded that the officers had reasonable suspicion, both for the stop and the pat-down. The 911 call reported an assault in progress, possibly involving a weapon, Simmons matched the description of the suspect and was at the specified location. Simmons was with other people, late a night in a high-crime area, and the fact that he had his hands in his pockets could have suggested that he was concealing a weapon, especially given the mention of the weapon in the tip, and Simmons' refusal to take his hands from his pockets.

The Juror

Having lost his suppression motion, Simmons went to trial. During two days of deliberations, his jury repeatedly asked for reinstruction on reasonable doubt and also indicated that it “cannot come to a unanimous decision.” When it returned to deliberate for the third day, one juror was absent. She reported to the clerk that she could not come to court because her child was ill. The defense objected to excusing the juror without knowing how long she might be absent, but the judge excused her with no further inquiry, citing “the quality of the trial,” the “indivisible nature of justice,” and the need to avoid inconveniencing the other jurors, in particular one who had complained of financial hardship due to prolonged jury service.

The circuit found no abuse of discretion, although it again cautioned that this was a close case. Some of the judge’s reasons for excusing the juror - the “quality of the trial” and the “indivisible nature of justice” - were “abstractions” that did not offer support for excusing a juror. And, while making an inquiry into a juror’s anticipated length of unavailability is “certainly a better practice than foregoing such inquiry,” it was not “required” here, in light of the judge’s finding that waiting an additional day before continuing deliberations risked causing the absence of another juror. If not for this additional factor, however, there was “serious doubt as to whether the district court’s decision would have been a permissible exercise of discretion, as the decision lies at the margins of that discretion.”

The Sentencing

Simmons was convicted of being a felon in possession of a firearm, which ordinarily has a ten-year statutory maximum. Originally, the government alleged that he was subject to the fifteen-year mandatory minimum under ACCA, but the district judge held that ACCA did not apply. This caused the government to cross-appeal. Subsequently, however, the court of appeals decided United States v. Darden, 539 F.3d 116 (2d Cir. 2008), which rendered that decision correct, and the government abandoned its appeal.

Although the district court did not apply ACCA, it still sentenced Simmons to 175 months’ imprisonment, fifty-five months more than the applicable statutory maximum. The defense pointed this out to the court in a Rule 35(a) motion, but the seven-day period for correcting a judgment had passed. In an order, the district court acknowledged its error but, without authority to correct it, instructed the parties to bring it to the court of appeals’ attention. They did so, jointly asking for a resentencing, which the circuit granted.