Archive | career offender

Friday, February 6th, 2009

Building Block

United States v. Hurell, No. 06-5653-cr (2d Cir. January 28, 2009) (Kearse, Calabresi, Sack, CJJ) (per curiam)

In each of these three consolidated cases, all government appeals, the district court held that New York convictions for burglary in the third degree or attempted burglary in the third degree were not crimes of violence as defined in the career offender provisions of the Sentencing Guidelines. Based on an intervening decision, United States v. Brown, 514 F.3d 256 (2d Cir. 2008), the court reversed.

More importantly, however, the court noted that there is a circuit split on whether burglary of a building, as opposed to a dwelling, constitutes a crime of violence under the relevant sections. The court not weigh in on the issue here, but rather called upon the Sentencing Commission resolve it, noting that the issue is of “particular significance” in the quest to avoid unwarranted sentencing disparities.…


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Categories: career offender, crime of violence, Uncategorized

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Sunday, July 27th, 2008

Remand Performance

United States v. Ogman, No. 06-0203-cr (2d Cir. July 24, 2008) (Sotomayor, Livingson, CJJ, Preska, DJ) (per curiam)

This published opinion replaces a summary order filed in this case back in April. [It was blogged in that month’s Summary Summary.] The case holds that, in a crack cocaine prosecution, a Regalado remand is not warranted when the defendant was sentenced as a career offender. The range that applies in such cases is the product of the career offender guideline, and not of the 100-to-1 powder to crack ratio.


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Categories: career offender, crack, Uncategorized

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Friday, May 2nd, 2008

Youthful Indiscretion

United States v. Parnell, No. 06-4551-cr (2d Cir. April 23, 2008) (Winter, Straub, Sack, CJJ) (per curiam)

In this case, the court again holds that a New York youthful offender adjudication (a “y.o.”) – here, it was for attempted burglary in the second degree – must be included in the defendant’s criminal history score under the sentencing guidelines and, where applicable, can trigger the “career offender” enhancement.

There is nothing new or surprising about this. What is interesting about this case is its strong dicta that a y.o is not a predicate under the Armed Career Criminal Act (ACCA). Indeed, the circuit cites with approval United States v. Fernandez, 390 F. Supp.2d 277 (S.D.N.Y. 2005) (litigated and won by this very blogger), which so held, and notes that, here, the district court followed Fernandez in declining to sentence Parnell under ACCA, a sentence, not incidentally, that the government did not …


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Categories: ACCA, career offender, Uncategorized, youthful offender adjudication

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Saturday, March 1st, 2008

Career Angst

United States v. Sanchez, No. 05-3812-cr (2d Cir. February 29, 2008) (Kearse, Straub, Pooler, CJJ).

In this long opinion, the court considered several challenges to recidivist sentences in a drug case. Two defendants, both “career offenders” under Guidelines section 4B1.1, got relief. A third, sentenced to an enhanced mandatory minimum, did not.

Career Offender

Title 28 U.S.C. § 994(h) directed the Sentencing Commission to develop Sentencing Guidelines for career offenders that would fix a Guideline range “at or near” the statutory maximum. Here, the district judge made statements that seemed to indicate that she believed that this section required her to sentence the defendants above the mandatory minimum, which was 120 months. She gave one defendant 235 months, and the other 188.

The court appellate court concluded that the district court’s apparent belief was incorrect. It noted that § 994(h) is a direction to the Commission, not the courts; moreover, …


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Categories: career offender, prior felony, Uncategorized

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