Author Archive | Steve Statsinger

Summary orders of interest have literally been piling up on my desk. Here’s the latest crop:

In United States v. Muse, No. 07-4482-cr (2d Cir. March 11, 2010), the court vacated the sentence where the district court erroneously believed that jury’ finding on a special interrogatory indicated that the defendants had been convicted only of a misdemeanor.

In United States v. Nazario, No. 09-0953-cr (2d Cir. March 11, 2010), the court noted, but did not resolve, the looming tension between Samson v. California, 547 U.S. 24 843, 857 (2006), which held that for a California parolee the Fourth Amendment does not prohibit suspicionless searches, and the court’s own precedents on the reasonableness of parole searches.

In United States v. Gardner, No. 08-4793-cr (2d Cir. March 10, 2010), the court remanded for resentencing where, under Williams, the defendant was not eligible for the mandatory consecutive § 924(c) sentence that he received. …

United States v. Savoca, No. 08-4610-cr (2d Cir. February 25, 2010) (Sack, Parker, CJJ, Goldberg, JCIT)

Defendant Savoca and his brother were both charged in an attempted robbery and shooting. Savoca accepted a plea agreement to a Hobbs Act attempt with a 37 to 46 month range and a “discharge” 924(c) with a mandatory 120-month consecutive sentence, for a total range of 157 to 166 months, including a 3-level reduction for acceptance of responsibility.

After he pled, but before his sentencing, Savoca testified at his brother’s trial and unsuccessfully tried to exonerate him. After the brother’s conviction, when Savoca was sentenced, the district court found that he committed perjury at the trial. It accordingly added 2 levels for obstruction of justice and denied him the 3-level reduction for acceptance of responsibility. With a new range of 183-198 months, the court sentenced Savoca to 190 months, and noted that it would …

United States v. Green, No. 08-5426-cr (2d Cir. February 17, 2010) (Kearse, Winter, Pooler, CJJ)

In this case, the Court holds that a crack sentence that was the product of an imperfectly amended Rule 11(c)(1)(C) plea agreement could not be reduced under 18 U.S.C. § 3582(c)(2).

Last year, in United States v. Main, 579 F.3d 200, 203 (2d Cir. 2009), the court held that a defendant sentenced under an 11(c)(1)(C) agreement was ineligible for a § 3582(c)(2) sentence reduction. See “Out Of Range,” posted August 30, 2009. Here, the 11(c)(1)(C) agreement specified a 168-month sentence, to run concurrent with Green’s undischarged state sentence. However, by the time Green was to be sentenced, he had completed the other sentence. His attorney wrote to the government and proposed that instead the sentence be 145 months. The government agreed, although not in writing, and at sentencing, the judge agreed as well and imposed …

As noted below, the circuit has been a bit slow this month. But here are three more summary orders of interest.

In United States v. Valentin, No. 07-5278-cr (2d Cir. February 9, 2010), the court ordered a Jacobson remand for the district court to clarify whether it would have imposed a shorter sentence if it understood it was permitted to do so under the Williams/Whitley decisions.

In United States v. Drayer, No. 07-1521-cr (2d Cir. February 9, 2010), the district court at sentencing accepted the government’s representation as to the loss amount, but then at a later restitution hearing came up with a loss figure that was seven million dollars lower, rendering the loss figure used at sentencing clearly erroneous. The circuit also found plain error in the district court’s inclusion of an enhancement for more than fifty victims, since the only victims the district court included in the loss …