Posts Categorized: Sentencing

Posted: February 18, 2020

Judge Vitaliano Holds that NY Penal Law § 150.05 (Fourth-Degree Arson) Is Not Prior “Crime of Violence” for Purposes of Sentencing Guidelines Calculation

Posted by Solomon N. Klein, Litigation Partner In a ruling involving a “very close question” of first impression in this District, Judge Vitaliano held that the recklessness standard applicable to fourth-degree arson in New York was not sufficiently “purposeful” to qualify as a prior “crime of violence” under the “career offender” provisions of the sentencing... Read more »

Posted: June 25, 2018

Judge Brodie Denies Criminal Defendant’s Motion To Require Government To Apply Forfeited Funds To Reduce Restitution Amount

Posted by Solomon N. Klein, Litigation Partner District Judge Margo K. Brodie rejected a defendant’s request to require the government to apply the amount of forfeited funds as a credit to his restitution obligation. United States v. Pratt, 17-cr-00262 (E.D.N.Y. June 11, 2018) (MKB). The defendant is a former postal employee who pled guilty to... Read more »

Posted: February 13, 2015

Remedy for Failure to Justify Above-Guidelines Sentence Is Remand for Explanation, Not New Sentence

On February 4, 2015, the Second Circuit issued a decision in United States v. Nelson, 13-3025, finding that the EDNY erred in sentencing a defendant above the guidelines range without explanation but nonetheless affirming the sentence. In Nelson, the defendant was sentenced to “to 25 years of imprisonment for unlawful use and discharge of a... Read more »

Posted: November 28, 2014

Court Erred in Relying on Presentencing Report in Determining Whether Defendant Was Subject to Armed Career Criminal Act

On November 14, 2014, the Second Circuit issued a decision in United States v. Dantzler, 13-2930-CR, holding that “a court may not rely upon a Presentence Report in determining whether crimes were committed “on occasions different from one another” for purposes of applying the Armed Career Criminal Act (“ACCA”), where the relevant facts described in... Read more »

Posted: July 17, 2014

Court Erred In Considering Only The Cost Of Incarceration During The Government Shutdown In Sentencing Defendant To Probation

On July 9, 2014, the Second Circuit issued a decision in United States v. Park, 13-4142-CR, reversing an EDNY decision sentencing a defendant to probation rather than imprisonment “based solely on its belief that the government could not afford the cost of incarceration during a so-called “government shut-down.” In Park, the defendant pled guilty to one count of... Read more »

Posted: May 22, 2014

Sentencing Issues

In Halloway v. United States, No. 01-CV-1017 (E.D.N.Y. May 14, 2014), Judge John Gleeson pressured the government to agree to reopen the sentencing of a defendant who had rejected a plea bargain of 130-147 months for stealing three cars at gunpoint and after losing at trial was sentenced to 57 years in prison. The disparity... Read more »