Author Archive | Steve Statsinger

Here are two summary orders of interest:

In United States v. Mammedov, No. 06-2971-cr (2d Cir. December 30, 2008), the court vacated a restitution order where the district court failed to set a payment schedule and, at least implicitly, ordered that the full amount be paid immediately. Ordering immediate payment when nothing in the record suggests that the defendant can comply is an abuse of discretion.

In United States v. Jibade, No. 08-1746-cr (2d Cir. January 7, 2009), the district court told the defendant that he faced possible deportation for his tax fraud conspiracy conviction when, in fact, deportation was mandatory. The court held that this warning was adequate because it put the defendant “on notice” that his guilty plea had immigration consequences so that he could pursue the matter later. Even assuming, however, that the warning was misleading or inacurate, in violation of Rule 11, the court did not …

There were some interesting summary orders this week.

In United States v. Romero, No. 06-1199-cr (2d Cir. December 18, 2008), the district court imposed a $10,000 fine, observing that the debt would make the defendant eligible for work in prison. That observation was incorrect, since a fine is not a prerequisite for obtaining prison employment. The circuit remanded so that the lower court can reconsider whether to impose a fine.

In United States v. McFadden, No. 07-3614-cr (2d Cir. December 17, 2008), the court did not enforce an appeal waiver in a plea agreement because, during the plea allocution, the court did not specifically flag the waiver, and even implied that McFadden had a limited right to appeal his sentence. As a result, the appellate court ordered a Crosby/Regalado remand.

In United States v. Sykes, No. 07-0505-cr (2d Cir. December 17, 2008), the court strongly suggested that a search of …

Here is the latest crop of summary orders of interest:

In United States v. Adelson, No. 06-2738-cr (2d Cir. December 9, 2008), a government appeal, the court affirmed a 42-month sentence, which was a substantial downward variance from the guidelines, which recommended life. Citing Cavera, the court noted that for “financial offenses” sentences “if adequately explained, should be reviewed especially deferentially.”

In United States v. Cardenas, No, 06-5601-cr (2d Cir. December 9, 2008), the court remanded for an evidentiary hearing as to whether an “oral cooperation agreement” existed. The defendant alleged that there was, and there was not “overwhelming evidence to the contrary.” Moreover, the defendant’s allegations were not contradicted by any of his prior statements. Since the defendant made “sufficiently specific allegations under oath to raise issues of material fact as to the existence of the alleged oral agreement . . . the record was insufficient to deny the …