921 F.3d 82
2d Cir.2019Background
- Juan Thompson pleaded guilty to cyberstalking (18 U.S.C. § 2261A(2)) and making hoax threats (18 U.S.C. § 1038(a)(1)) for harassing his ex‑girlfriend and sending bomb/anti‑Semitic emails in her name.
- A Brooklyn family court issued an ex parte temporary order of protection in Aug. 2016 (renewed Oct. 2016), but Thompson was never formally served with the petition, summons, or order.
- At sentencing the district court applied a 2‑level Guidelines enhancement under U.S.S.G. § 2A6.2(b)(1)(A) for offenses involving violation of a court protection order, producing an advisory range of 37–46 months.
- The district court nevertheless imposed an upward departure to the statutory maximum of 60 months; Thompson appealed the application of the enhancement.
- After sentencing, the Sentencing Commission issued Amendment 805 clarifying the meaning of “court protection order,” which this Court treated as a clarifying change applicable on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the § 2A6.2(b)(1)(A) two‑level enhancement applies given the family court’s ex parte order | Gov: enhancement applies because Thompson had notice of the order under NY law | Thompson: enhancement does not apply because he was not served per state law and the issuing court lacked personal jurisdiction | Enhancement does not apply: no proper service under NY law, so issuing court lacked personal jurisdiction and the order cannot support the enhancement |
| Whether Amendment 805 is a clarifying amendment applicable on appeal | Gov (waived any contrary argument): amendment is clarifying and applies | Thompson: amendment applies and clarifies that state‑law service/jurisdiction requirements matter | Amendment 805 is clarifying; Court applied it on appeal |
Key Cases Cited
- Vasquez v. United States, 389 F.3d 65 (2d Cir.) (standard for mixed law/fact review at sentencing)
- Cavera v. United States, 550 F.3d 180 (2d Cir.) (procedural error when Guidelines miscalculated)
- Molina‑Martinez v. United States, 136 S. Ct. 1338 (U.S.) (incorrect Guidelines range can show reasonable probability of different outcome)
- Jass v. United States, 569 F.3d 47 (2d Cir.) (harmless‑error framework for Guidelines calculation errors)
- Feinstein v. Bergner, 48 N.Y.2d 234 (N.Y.) (actual notice does not cure defective statutory service for personal jurisdiction)
- United States v. Townsend, 897 F.3d 66 (2d Cir.) (interpreting Guidelines with presumption that federal law does not depend on state law unless indicated)