Remand for Greater Sentence in Terrorism case – In this terrorism case, the Government appeals the substantive reasonableness of the sentence imposed on Defendant‐Appellee Fareed Mumuni (“Mumuni”). He was convicted of, inter alia, conspiring to provide material support to the Islamic State of Iraq and al‐Sham (“ISIS”) and attempting to murder a federal agent in the name of ISIS. His advisory sentence under the United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) was 85 years’ imprisonment. The sole question on appeal is whether the United States District Court for the Eastern District of New York (Margo K. Brodie, Judge) erred—or “abused its discretion”—by imposing a 17‐year sentence, which constitutes an 80% downward variance from Mumuni’s advisory Guidelines range. We conclude that it did. Accordingly, we REMAND the cause for resentencing consistent with this opinion.
Murder and Racketeering – United States v. Sierra, 933 F.3d 95 (2d Cir. Aug. 1, 2019).
The Second Circuit affirmed mandatory life sentences for the defendants, who were convicted of substantive and conspiracy counts of murder in aid of racketeering. The court rejected the defendants’ argument that their sentences violated the Eighth Amendment because of their ages, which ranged from 18 to 22, explaining that Miller v. Alabama,
567 U.S. 460 (2012), drew the line at 18 for age-based challenges. The court also rejected one defendant’s argument
that his sentence violated the Eighth Amendment because it was mandatory and he did not commit the murder directly, citing to Harmelin v. Michigan, 501 U.S. 957 (1991).
Identity Theft- After pleading guilty, Isabel Yero Grimon appeals her convictions for possessing 15 or more unauthorized access devices and aggravated identity theft. Case: 17-15011 Date Filed: 05/13/2019 Defendant Grimon argues that the factual proffer supporting her guilty plea was insufficient to establish that the unauthorized access devices she possessed affected interstate commerce and, therefore, the district court lacked subject matter jurisdiction. The question presented is whether the district court has subject matter jurisdiction over a criminal case to accept a guilty plea where: (1) the indictment charges a violation of a valid federal criminal statute and sets forth the interstate commerce element of the crime; (2) the factual proffer for the guilty plea states the government at trial would prove that the defendant’s conduct affected interstate commerce; but (3) the factual proffer does not contain any underlying facts explaining how the interstate commerce nexus was satisfied. After review, and with the benefit of oral argument, we conclude that the interstate commerce element in 1029(a)(3) is not jurisdictional in the sense of bearing on whether the district court has subject matter jurisdiction to adjudicate a case, and thus the government’s alleged failure to prove sufficiently the interstate commerce nexus does not deprive the district court of its subject matter jurisdiction over Grimon’s criminal case. Thus, we affirm Grimon’s convictions.
Child Pornography – Case: 17-12349 Date Filed: 05/08/2019. After his guilty plea to possession of child pornography, David Rothenberg appeals from the district court’s restitution order requiring him to pay a total of $142,600 in restitution to nine victims depicted in the images of child pornography that he possessed. Section 2259 mandates that district courts order defendants to pay the victims the full amount of the victim’s losses as determined by the court. 18 U.S.C.- 2259. This case involves the question of how to calculate the amount of restitution a possessor of child pornography, like the defendant Rothenberg, must pay to a victim whose childhood sexual abuse appears in the pornographic images he possessed but did not create or distribute. On appeal, Rothenberg argues that: (1) the district court’s restitution order is flawed as to all of the victims because it failed to calculate and then disaggregate the victim’s losses caused by the initial abuser, distributors, and other possessors from those caused by Rothenberg himself; and (2) as to eight of the victims, the restitution award is not supported by competent evidence. After review, and with the benefit of oral argument, we conclude that the district court was not required to calculate and disaggregate the victim’s losses in the manner Rothenberg suggests and that reliable evidence supports the restitution awards as to eight victims, but not as to one victim. We thus affirm the restitution amounts as to eight victims and vacate and remand as to one victim.