Author Archive | Darrell Fields

Tuesday, April 5th, 2016

Second Circuit Updates – April 5, 2016

There were no opinions in criminal cases from the Circuit this day.  The Circuit issued a single summary affirmance in United States v. Miller, No.15-108-cr, where it rejected the defendant’s claim that his 144-month – but nevertheless below-Guidelines – sentence was substantively unreasonable.

United States v. Miller, No.15-108-cr:

Miller was convicted of a  drug distribution conspiracy ( 21 U.S.C. § 846)  involving a (b)(1)A)-quantity of drugs — i.e., 21 U.S.C. § 841.  The drugs were more than 1,000 kilograms of marijuana.  He committed the offense “while on supervised release from a prior conviction for cocaine trafficking and firearms possession.”  His sole contention on appeal, according to the Circuit, was that his 144-month prison sentence, which was a downward variance from a Guidelines range of 151 to 188 months, “was substantively unreasonable the because the only reasonable sentence is one at the statutory minimum of 120 months’ …

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Categories: guideline, marijuana

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Categories: guideline, marijuana

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Monday, March 7th, 2016

Sentence Imposing Imprisonment is Final Even if the Amount of Restitution is Undetermined; Pro Se Litigant’s Third 2255 Motion Deemed Successive Petition

The Second Circuit issued two opinions today.

UNITED STATES v. TULSIRAM, No. 14-2483 (2d Cir. March 7, 2016)(Cabranes, Parker, and Lynch).

The Circuit addresses two issues in this case: the first concerns its jurisdiction to review a judgment of conviction that imposes a sentence of imprisonment and restitution but leaves the restitution undetermined; the second, whether the district court’s failure to advise the defendant about mandatory restitution, during the plea allocution, is plain error warranting vacutur of the defendant’s guilty plea.

The Circuit holds (1) that a judgment of conviction imposing both a sentence of imprisonment and restitution, but that leaves the amount of restitution for a later determination — and one that here, never happens — is nevertheless “final” under 28 U.S.C. § 1291, and the Circuit therefore has jurisdiction to review the judgment; and (2) that a district court’s failure to advise the defendant of mandatory restitution …

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Categories: Rule 11, Uncategorized

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Categories: Rule 11, Uncategorized

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