Archive | sentencing

Thursday, March 24th, 2016

SDNY Update: Judge Kaplan Finds Career Offender Guideline Range Too High, Imposes Sentence Based on Offense-Specific Guideline

Yesterday in the SDNY, Judge Lewis A. Kaplan found that the career offender guidelines overstated the seriousness of the offense in a case involving a conviction under 21 U.S.C. 841(b)(1)(C), and that a sentence within the career offender guideline range of 151-188 months would have resulted in a sentence greater than necessary to achieve the statutory sentencing objectives. Instead, Judge Kaplan imposed a sentence within the 30-37 month guideline range that would have applied, under U.S.S.G. 2D1.1, absent the career offender guideline. The case was United States v. John Cole, 15 Cr. 197 (LAK).

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Categories: career offender, sentencing

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Wednesday, March 16th, 2016

Second Circuit Updates – March 16, 2016 – Home Confinement as Condition of Supervised Release, Sentencing Enhancement for Using Gun in a Robbery, Scope of Cross Examination

Three short summary orders today:

First up, United States v. Fiume: In this case, the sentencing court imposed “GPS tracking” as a condition of Mr. Fiume’s supervised release, but never stated that it was also imposing home detention, a “separate and additionally burdensome condition.” Nonetheless, a condition of home detention appeared in Mr. Fiume’s written judgment. The circuit vacated the home detention condition and remanded for the written judgment to be corrected. The circuit otherwise upheld Mr. Fiume’s 10-month prison sentence as reasonable.

Next up, another sentencing case, United States v. Crum. Here, Mr. Crum argued that the sentencing court should not have enhanced his weapon possession sentence on the basis that the weapon had been used in a robbery. The circuit disagreed, finding the enhancement was not clearly erroneous based on a witness’s 911 calls about a gunpoint robbery by two men, one wearing black and one …


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Categories: cross-examination, sentencing, supervised release

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Sunday, June 3rd, 2012

Cash Cow

United States v. Wagner-Dano, No. 10-4593-cr (2d Cir. May 14, 2012) (Winter, Livingston, CJJ, Rakoff, DJ)

Melissa Wagner-Dano was a bookkeeper in upstate New York, where she worked for a small town and two large dairy farm cooperatives. She stole more than $1 million from her employers through unauthorized withdrawals from their bank accounts, using used the money for various personal projects. Wagner-Dano covered her tracks by transferring funds among the employers’ accounts. As the scheme unraveled, she blamed the missing funds on computer errors, then repaid some of the money from her personal bank account. Finally, she threw in the towel, admitted her crime and pled guilty to wire fraud.

On appeal, she claimed that several errors in her presentence report rendered her 78-month, top-of-the-range sentence procedurally unreasonable. Wagner-Dano had detailed these objections to the Probation Department, which had explained them in the addendum to the report, but …


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Categories: plain error, sentencing, Uncategorized

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Tuesday, August 19th, 2008

Ratio Days

United States v. Keller, No. 07-3330-cr (2d Cir. August 14, 2008) (Miner, Cabranes, CJJ, Berman, DJ)

This case provides an important clarification of the procedure that the court set out earlier this year in United States v. Regalado, 518 F.3d 143 (2d Cir. 2008). In that case, the court held that a remand was warranted on appeals of pre-Kimbrough crack sentencings where the defendant did not ask for a variance based on the 100-to-1 penalty ratio, because there would be no way for the circuit to know whether the district court would have imposed a different sentence if it knew that it had the discretion to do so.

Here, the district judge gave a two-level sentence reduction to match the anticipated amelioration of the crack sentencing guidelines, but did not specifically acknowledge its discretion to consider the crack-powder sentencing disparity as the basis for imposing a non-guideline sentence. The circuit …


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Categories: crack, regalado, sentencing, Uncategorized

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Tuesday, July 8th, 2008

CASH AS CACHE CAN

United States v. Jones, No. 05-5879-cr (2d Cir. June 24, 2008) (Leval, Cabranes, Raggi, CJJ)

In 2004, Jones was present in a “gatehouse” – an apartment used solely for the purpose of selling drugs – when Rochester police executed a search warrant. The officers found, inter alia, twenty-two grams of crack residue and $883 in cash hidden in the apartment. Jones admitted “selling a little.” Despite this admission, the jury convicted him only of simple crack possession.

At sentencing, the court held him accountable for possessing forty-seven grams of crack. This comprised the twenty-two grams of crack residue, plus an estimated twenty-five additional grams, which was based on the probable amount that Jones had sold to realize the $883.

The Appeal

Drug Quantity

On appeal, Jones argued, primarily, that it was unreasonable for the court to translate the money into drugs for the purposes of calculating drug quantity under the …


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Categories: discretion, drug quantity, sentencing, Uncategorized

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Friday, May 9th, 2008

Quantum Mechanics

United States v. Martinez, No. 06-5502-cr (2d Cir. May 9, 2008) (per curiam).

In this brief per curiam, the court reaffirms that there is only one quantum of proof necessary for sentencing enhancements post-Booker – the preponderance standard.

Specifically, the court rejected Martinez’ argument that where the enhancement requires the sentencing judge to determine that the defendant committed a separate offense (here, the 4-level bump under § 2K2.1(b)(6) for using a gun in connection with another felony offense), those facts should be proven beyond a reasonable doubt. The circuit noted that the district court did not sentence Martinez for the other offense; it merely determined that the separate offense was relevant to the sentence to be imposed on the offense of conviction, and that Martinez did not receive a sentence longer than the applicable statutory maximum.…


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Categories: preponderance, sentencing, standard of proof, Uncategorized

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Friday, May 2nd, 2008

Rejection Letter

United States v. Negron, 06-3614-cr (2d Cir. April 24, 2008) (Jacobs, Kearse, Pooler, CJJ) (per curiam)

Defendant Silverio, who was sentenced to 272 months (22 years, 8 months) in prison, had been offered, and rejected, a plea agreement with a binding sentencing recommendation of 17 years. On appeal, he argued that district court erred in refusing to consider the terms of the rejected agreement at sentencing.

Not surprisingly, the appellate court disagreed. There is nothing in § 3553(a) – or circuit precedent – that requires a district court to do so. Accordingly, finding no substantive or procedural defect with the sentence, the court affirmed.


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Categories: plea agreement, sentencing, Uncategorized

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Friday, April 4th, 2008

Consecutive Privilege

United States v. Donoso, No. 07-0635-cr (2d Cir. April 3, 2008) (McLaughlin, Hall, CJJ, Sand, DJ) (per curiam)

Resolving an open question in this circuit, the court here holds that, under 18 U.S.C. § 3584(a), a district judge cannot order the federal sentence to run consecutively to another sentence that has not yet been imposed.

Facts: Richard Donoso violated his federal supervised release by committing a state offense. He pled guilty in state court, then came into federal court and admitted the supervised release violation. Judge Spatt sentenced him to 24 months’ imprisonment and ordered it to run consecutively to the state sentence. Donoso was not sentenced in the state case, however, until the next day. A few days later, Judge Spatt recalled the case, questioning whether he had the power to impose a consecutive sentence before the state sentence had been imposed. Invoking Fed.R.Cr.Proc. 35(a), and over objection, he …


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Categories: concurrent, consecutive, sentencing, Uncategorized

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Monday, March 24th, 2008

Fraud Man Out

United States v. Cutler, No. 05-2516(L) (2d Cir. March 17, 2008) (Jacobs, Kearse, Pooler, CJJ)

In this case, the government successfully appealed the exceptionally lenient sentences that Judge Preska imposed on two defendants convicted of a multi-million dollar fraud. The circuit found that the sentences were both procedurally and substantively unreasonable, and remanded the case for resentencing.

Facts

James Cutler was the CFO of a holding company that owned hotels; Sanford Freedman was its general counsel. Together, they helped the company and its principals cheat a number of banks out of more than $100 million. In very brief, the scheme worked like this:

In the 1990’s, the holding company restructured its debt, and its principals executed deficiency notes that made them personally liable for those debts. Around the same time, they sold key assets of their company to another company for stock worth more than $100 million. Although they therefore …


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Categories: procedural reasonableness, sentencing, substantive reasonableness, Uncategorized

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Thursday, March 6th, 2008

The “Regalado Remand”

United States v. Regalado, No. 05-5379-cr (2d Cir. March 4, 2008) (Jacobs, Pooler, Sack, CJJ) (per curiam)

At last, the circuit has told us what to do in light of Kimbrough. And the answer is, in essence, a Crosby remand.

Regalado received a 262-month crack sentence, the bottom of the Guideline range (he was not a career offender). The sentencing judge said nothing about the 100-to-1 crack/cocaine disparity and the defendant never raised it. Due to this silence, the appellate court concluded that it could not “tell whether the district court would have exercised its now clear discretion to mitigate the sentencing range produced by the 100-to-1 ratio.” To solve the problem, the court decided to import the “Crosby mechanism” to crack cases.

Specifically, where a “defendant has not preserved the argument that the sentencing range for the crack cocaine offense fails to serve the [statutory] …


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Categories: crack, sentencing, Uncategorized

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Sunday, February 24th, 2008

The Government Giveth and the Government Taketh Away

United States v. Dominguez, No. 05-7005-cr (2d Cir. February 15, 2008) (Miner, Sack, Hall, CJJ)

Carol Dominguez faced 240-months in prison: a ten-year crack minimum that was doubled because of her prior conviction. The government moved for a downward departure under 5K1.1 and 18 U.S.C. § 3553(e), then asked the court to sentence her somewhere within a 151 to 188 month range. At sentencing, the judge granted the government’s motions, and then considered mitigating information from Dominguez’ family, friends, employers and the defendant herself. The judge indicated that he believed he had the “discretion to sentence you as to what I feel would be fair and reasonable under the circumstances.” He said that he had “reviewed and considered all the pertinent information including but not limited to the presentence investigation report, submissions by counsel the factors outlined in 18 U.S.C. Section 3553 and the sentencing guidelines” and sentenced her to …


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Categories: cooperation, sentencing, Uncategorized

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