Archive | sentence

Friday, May 2nd, 2008

State of Disagreement

United States v. Williams, No. 05-4416-cr (2d Cir. April 25, 2008) (Calabresi, Cabranes, CJJ, Korman, DJ)

Here, the court vacated two below-guideline sentences that seemed to have been imposed largely in order to minimize a perceived disparity between the sentence recommended by the guidelines and the sentence that would have been meted out in state court.

Williams and Shuler sold crack together in Yonkers. They were first charged in state court, then the case was transferred to federal court. For reasons that are not clear, they were separately charged and their cases were handled by different district judges.

Williams was sentenced first, by Judge McMahon. He faced a 70 to 87 month range (now it would be 57 to 70 due to the crack guideline amendments) but the judge, persuaded by Williams’ attorney that the plea offer from Westchester County D.A.’s office’s would have been between 12 and 66 months, …


Posted By
Categories: disparity, procedural reasonableness, sentence, Uncategorized

Continue Reading
Wednesday, April 9th, 2008

Next Stop, Confusion

United States v. Hendry, No. 06-5118-cr (2d Cir. Aprl 9, 2008) (Leval, Calabresi, Wesley, CJJ) (per curiam)

In this decision the Court blows yet another opportunity to clarify the “fast-track” sentencing issue in illegal reentry cases.

The court has already held that district courts are not required to take into account the lower sentences imposed in fast track districts, but has left open the question whether a court has the authority to do so if it deems a reduced sentence warranted. This decision still seems to leave the question open. Here, although Hendry argued that the district judge erroneously believed that he could not consider the absence of a fast-track program in deciding what sentence to impose, the circuit found that the district judge believed that he could consider it – although he elected not to do so – and the opinion does not say whether the judge’s belief was …


Posted By
Categories: fast-track disparity, illegal reentry, sentence, Uncategorized

Continue Reading
Sunday, February 24th, 2008

Fast-Track Train Still Stalled

United States v. Ramirez-Sucar, No. 06-2909-cr (2d Cir. February 20, 2008) (per curiam)

Here is yet another case in which the circuit does not decide whether a district court can consider the lenient illegal-reentry sentences that are regularly imposed in “fast-track” districts as the basis for downward variance. Once again, all the court notes is that a district judge does not have to consider fast-track sentences. But, of course, we already knew that.

Comment: Just decide the *$&@#)$ issue already. It is not even all that controversial any more, in light of Gall and Kimbrough.…


Posted By
Categories: fast-track disparity, sentence, Uncategorized

Continue Reading
Wednesday, December 26th, 2007

Breach Baby

United States v. Griffin, No. 05-4106-cr (2d Cir. December 21, 2007) (Pooler, Sack, Wesley, CJJ)

In this case, a divided panel concluded that the government breached its plea agreement in a child pornography case by twice suggesting that the defendant might not be entitled to a downward adjustment for acceptance of responsibility.

Facts: Defendant Michael Griffin pled guilty to possessing child pornography by using the file-sharing service Kazaaa. His plea agreement left open a number of disputed Guidelines issues, which were the subject of a lengthy evidentiary hearing, but stipulated that the government would not oppose a three-level acceptance of responsibility adjustment. Before sentencing, Griffin filed numerous objections to the Guidelines calculations in the presentence report; most pertinently, he denied knowingly possessing a particularly disturbing video known as “BabyJ,” and also denied telling the FBI, in a post-arrest statement, that he knew that the video had been on his computer.…


Posted By
Categories: breach, plea agreement, sentence, Uncategorized

Continue Reading
Thursday, November 29th, 2007

Have You Hugged A Sex Offender Lately?

United States v. Juwa, No. 06-2716-cr (2d Cir. November 28, 2007) (Walker, Calabresi, Sack, CJJ)

United States v. Baker, No. 05-4693-cr (2d Cir. November 16, 2007) (Summary Order)

The circuit has. Twice, but only once in a published opinion. In Juwa, the court found that a 90-month sentence was procedurally unreasonable because it might have been based on unsubstantiated pending state court charges.

Juwa pled guilty to possessing child pornography, and faced a 24 to 30 month range. At the time of his federal sentencing he was charged in state court with sexually abusing his nephew on multiple occasions, and had worked out a plea agreement under which he would plead to a single count in exchange for a 5-year sentence that would be concurrent to his federal sentence.

At his federal sentencing, however, the district court went way above the agreed-upon range “based on the information before” it about …


Posted By
Categories: procedural reasonableness, sentence, substantive reasonableness, Uncategorized

Continue Reading
Sunday, November 18th, 2007

To Life!

United States v. Freeman, No. 05-5529-cr (2d Cir. November 14, 2007) (Straub, Katzmann, Parker, CJJ)

Michael Freeman was convicted of drug trafficking, robbery and gun possession, but acquitted of two homicide counts. The district court nevertheless imposed a life sentence, based on its preponderance finding that Freeman committed the murders of which he was acquitted.

The court rejected various challenges to the sentence. It held – again – that the statutory maximum for violating 18 U.S.C. § 924(c) is life, thus the life sentence was legal. It also held that the district court had complied with the circuit’s requirement that it “consider” the acquittal, and that the district court properly found that Freeman himself committed the murders.

Freeman also challenged an evidentiary ruling. At trial, the court admitted a redacted version of his confession that contained only the inculpatory part, but omitted exculpatory statements suggesting that some of his actions …


Posted By
Categories: acquitted conduct, life, Rule 106, rule of completeness, sentence, Uncategorized

Continue Reading
Tuesday, October 16th, 2007

Location, Location, Location

United States v. Cavera, No. 05-4591-cr (2d Cir. October 11, 2007) (Cardamone, Calabresi, Pooler, CJJ)

Gerard Cavera received an above-Guidelines sentence based on the district court’s view that gun offenses were more serious in densely populated areas like New York city. This opinion is the court’s second attempt to deal with a location-specific reason for imposing a non-Guideline sentence. Confusingly, both attempts have been in this same case.

The first opinion here, back in June, held unequivocally that a district court’s “reliance on community-specific characteristics, such as population density, to impose a non-Guidelines sentence constituted legal error and rendered [the] sentence unreasonable.” This opinion held that it was always inappropriate to use “community-specific” considerations as the basis for deviating from the Guidelines, because such sentences would lead to unwarranted regional disparities in sentencing. Judge Calabresi concurred in the result, but disagreed with the majority’s analysis, rejecting the “broad language . …


Posted By
Categories: disparity, location, sentence, Uncategorized

Continue Reading
Saturday, October 13th, 2007

Steal This Footnote

United States v. Johnson, No. 05-3811-cr (2d Cir. October 10, 2007) (Meskill, Cabranes, Wesley, CJJ)

This is pretty much a case about nothing. The only real nugget is in footnote 4.

Johnson appealed his 120-month gun sentence – the statutory maximum – on several grounds. As is often true, his case had begun in state court, but was later transferred to federal court. Johnson pointed out that had the state prosecution gone forward, he could not have received more than seven years’ imprisonment. On appeal he argued that the district court was required to sentence him so as to take into account (1) the disparity between his sentence and his co-defendant’s, a claim that the court has already rejected, and (2) the disparity between his federal sentence and the sentence he would have received in the state court.

The court rejected this second claim as well, holding that a district …


Posted By
Categories: disparity, sentence, state, Uncategorized

Continue Reading
Saturday, September 29th, 2007

Follow The Bouncing Anders

United States v. Whitley, Docket No. 05-3359-cr (2d Cir. September 17, 2007) (Straub, Pooler, Parker, CJJ) (per curiam)

Once – or rather twice – again, in these consolidated appeals, the Circuit has bounced Anders briefs. Here the court was dissatisfied with the briefs’ treatment of the reasonableness of the sentence. One “merely recite[d] the legal standard for procedural reasonableness and desribe[d] the sentencing process” but did not analyze either the procedural or substantive reasonableness of the sentence itself. The other made conclusory statements about the reasonableness of the sentence but did not analyze the district court’s sentencing determinations or the sentence itself.

After reviewing the purposes of Anders briefs, the court held that such briefs must include a discussion of both the substantive and procedural reasonableness of the sentence, reminding the bar that there is no presumption of reasonableness for Guidelines sentences in this Circuit.

What is the lesson here? …


Posted By
Categories: Anders, presumption, procedural reasonableness, sentence, substantive reasonableness, Uncategorized

Continue Reading
Sunday, September 23rd, 2007

The Thirty Years’ War

United States v. Cuevas, No. 06-0607-cr (2d Cir. August 23, 2007) (Cardamone, Straub, CJJ, Koeltl, DJ

In this case, the defendant Jose Cuevas, who was extradited to the United States from the Dominican Republic, argued, with out success, that a 30-year sentencing cap contained in the extradition decree should apply to him.

Cuevas was charged, in the late 1990’s, with drug trafficking and money laundering offenses. He was home in the Dominican Republic at the time and, not unwisely, decided to remain there.

Undeterred, the government initiated extradition proceedings. After much diplomatic back-and-forth, the D.R. handed Cuevas over to American authorities on July 6,2002. Two weeks later, the U.S. received a copy of the extradition decree itself, signed by the president of the D.R. which invoked a treaty requirement that a “no penalty greater than … thirty years shall be imposed.” Unimpressed with this, Judge Rakoff ultimately sentenced Cuevas to …


Posted By
Categories: Booker, equities, extradition, sentence, treaty, Uncategorized

Continue Reading