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United States v. Webster, et al., 2011 WL 1518669, No. 10-cr-312 (NDNY April 19, 2011) (J. Hurd)
The defendants here were both charged with conspiracy to possess with the intent to distribute and to distribute a controlled substance. Following a two day suppression hearing the District Court suppressed 21 kilograms of cocaine and all other evidence seized from the vehicle the defendants occupied and all statements made by the defendants following the unlawful seizure. The Court held that a traffic stop of the vehicle Murphy was driving occurred and thus, the burden to prove a valid basis to justify the seizure under the Fourth amendment shifted to the prosecution. In a strong fact based opinion the court reasoned the government was not able to meet this burden. Tim Austin and Kevin Luibrand represented the accused.
Second Circuit News
SENTENCING COMMISSION VOTES TO APPLY FAIR SENTENCING ACT GUIDELINE AMENDMENT RETROACTIVELY
On June 30, 2011 the U.S. Sentencing Commission voted to
give retroactive effect to its proposed permanent amendment to the
federal sentencing guidelines that implements the Fair Sentencing
Act of 2010. Retroactivity of the amendment will become effective
on November 1, 2011, the same day that the proposed permanent
amendment would take effect, absent Congressional disapproval.
See the following materials for more information:
Reader Friendly Text of the Retroactivity Amendment: (http://www.ussc.gov/Legal/Amendments/Reader-Friendly/20110630_RF_Amendment_Retro.pdf)
Sentencing Commission’s Press Release:
(http://www.ussc.gov/Legislative_and_Public_Affairs
/Newsroom/Press_Releases/20110630_Press_Release.pdf)
If you have any questions regarding application of the Retroactive
Amendment to the Crack Cocaine Guidelines, contact James Egan
in Syracuse at 315-701-0080, or james.egan@fd.org.
FINAL 2011 GUIDELINE AMENDMENTS
Here is a link to the Final 2011 Guideline Amendments, effective November 1, 2011 (http://www.ussc.gov/Legal/Amendments/Reader-Friendly/20110428_RF_Amendments_Final.pdf)
ATTORNEY GENERAL ERIC HOLDER INSTRUCTS THE
DEPARTMENT OF JUSTICE TO APPLY THE FAIR SENTENCING
ACT TO ALL INDIVIDUALS SENTENCED AFTER AUGUST 3, 2010
In a sudden change of position, Attorney General Eric Holder issued
a two-page memorandum on July 15, 2010, acknowledging that Congress
intended all individuals sentenced after August 3, 2010, to benefit from the
change of triggering quantities set forth in the Fair Sentencing Act.
The memorandum also makes clear that all individuals sentenced after
August 3, 2010, who did not benefit from the FSA will have to be resentenced.
Link to Holder Memo of July 15, 2011 (http://www.fd.org/pdf_lib/Holder FSA memo 7.15.11.pdf)
United States v. Lee (10-493-cr) (July 26, 2011)
(Parker, Chin, CJJ., Korman, DJ)
The Circuit holds that the government acted unlawfully in failing to move for third acceptance of responsibility point under U.S.S.G. Section 3E1.1(b) because defendant contested factual issues at sentencing.
Although the defendant had timely indicated his intention to enter a guilty plea, thus permitting the goverment to avoid having to prepare for trial, at sentencing, the government declined to move for the third-point because the "defendant required the government to undergo extensive preparation for a Fatico hearing on multiple sentencing issues, and, after the government had undergone such preparation, the defendant elected to proceed with a Fatico hearing on narrower issues." The Court of Appeals held that the government's refusal to move for a thrid-point was based on an unlawful purpose for three reasons. First, the additional reduction under Section 3E1.1(b) refers to sparing the government from preparation for trial; it has nothing to do with sentencing hearings. Second, and relatedly, the reduction speaks only of assisting the government in saving resources by avoiding trial, not disputes at a sentencing hearing. Third, a defendant has a due process right to contest errors in the PSR that affect sentencing and cannot be punished for doing so. Therefore, the Circuit held that "as long as the defendant disputes the accuracy of a factual assertion in the PSR in good faith, the government abuses its authority by refusing to move for a third-point reduction because the defendant has invoked his right to a Fatico hearing."
Coming soon.