Author Archive | Steve Statsinger

As summer draws to a close, here are two more summary orders of interest.

In United States v. Reap, No. 06-5793-cr (2d Cir. August 30, 2010), the court notes that it is an open question in the circuit whether 18 U.S.C. § 922(g)(1) requires proof that the defendant knew that he had a prior felony conviction.

In United States v. Goodwin, No. 09-2019-cr (2d Cir. September 9, 2010), the district court erroneously applied the four-level enhancement for possessing a firearm “in connection with” another felony offense by relying on a “fact not supported by record evidence.” The court rejected the defendant’s request for a remand with instructions not to impose the enhancement, instead opting for an “open ended” remand because “the facts relating to whether the enhancement might apply are unclear.”…

United States v. Epstein, No. 09-4025-cr (2d Cir. September 3, 2010) (Miner, Cabranes, Straub, CJJ) (per curiam)

In United States v. Merced – argued and won by our favorite blogger – the circuit held that prior terms of imprisonment for supervised release violations counted toward, and limited, the statutory maximums contained in 18 U.S.C. § 3583(e)(3). Congress “fixed” Merced in 2003’s PROTECT Act. This per curiam holds that the amended statute applies where the underlying offense occurred after the enactment of the new legislation.

Defendant Epstein received a twenty-four month violation sentence, but argued that the district court was obligated to credit him for a prior twelve-month violation sentence. This would have been required under the old statute, per Merced. But the amended statute “eliminate[s] the credit for terms of imprisonment resulting from prior revocations.” This outcome is clearly dictated by the change to the statute, which now indicates that …

Here are two more summary orders of interest. Probably the last of this Term.

In United States v. Johnson, No. 06-2206-cr (2d Cir. July 28, 2010), the court ordered a resentencing because the district court did not comply correctly with a prior order vacating the sentence. The original order required a de novo resentencing, but the district court did not conduct one. It simply issued a new sentencing opinion imposing the same sentence. The circuit also remanded to different judge because “the number of errors that have attended defendant’s repeated sentencing proceedings could lead a reasonable observer to question the court’s impartiality.”

In United States v. Bonczek, No. 09-3865-cr (2d Cir. August 19, 2010), the court noted that there is a circuit split on the question whether a judge issuing a search warrant in a child pornography case needs to view the images in order to find probable cause. The …