Author Archive | Steve Statsinger

United States v. Drachenberg, No. 09-3114-cr (2d Cir. October 2, 2010) (Kearse, Pooler, Hall, CJJ) (per curiam)

The court’s latest per curiam puts to rest several recurring tax-protester argumenst. Representing himself pro se, Drachenberg argued that federal courts had no jurisdiction over him because “New York is not subject to the legislative or territorial jurisdiction of the United States” and thus that as a “native-born” New Yorker he was under no obligation to pay income taxes “unless and until the United States has conquered or subsumed New York.”

The circuit called this argument “as frivolous as it is hackneyed.” Congress had authority to enact the statute of conviction, and the constitution clearly authorizes Congress to collect taxes. “In sum, the United States was not in want of jurisdiction.”

The court also summarily rejected Drachenberg’s arguments that he was not a “person” subject to income tax – he obviously is – …

This is hot off the presses – today, in a summary order, the court held that the Fair Sentencing Act is not retroactive, since it “contains no express statement that it is intended to have retroactive effect nor can we infer such intent from its language.” The case is United States v. Baldwin, No. 09-1725-cr (2d Cir. October 27, 2010) (summary order).…

Well, it’s been a while, but the court has finally issued a couple of summary orders of interest.

In United States v. De La Cruz, No. 09-4641-cr (2d Cir. October 21, 2010), the district court, in imposing sentence, remarked that a “Guideline sentence by definition really can’t create unwarranted sentencing disparity.” The circuit agreed with the defendant’s argument that this was incorrect; under Kimbrough “a Guidelines sentence can create an unwarranted disparity.” But here, since the sentencing decision did not depend in any way on an improper view that a Guideline sentence was by definition reasonable, there was no error.

In United States v. Faison, No. 09-1519-cr (2d Cir. September 14, 2010), the court remanded for recalculation of defendant’s criminal history. The district court used the Guidelines in effect at the time of the offense, but those in effect at the time of sentencing would likely have produced in a …

United States v. Ahders, No. 09-4093-cr (2d Cir. September 16, 2010) (Katzmann, Hall, Chin, CJJ) (per curiam)

In this latest per curiam, the court vacated a long sentence imposed for producing child pornography, because the district court did not make adequate findings on a sentencing enhancement.

Steven Ahders pled guilty to a single production count that alleged he victimized a “male minor,” his step-son. Ahders had also abused two of the boy’s friends, however, and at sentencing the court “grouped” the other children into his Guidelines calculations, even though that conduct was not charged. The circuit rejected Ahders’ argument that this was error. The relevant Guideline, § 2G2.1, expressly provides that if the abuse involved more than one minor the court should treat each child as if a separate count of conviction.

However, the court agreed with Ahders that the district court did not adequately explain its application of the …