Author Archive | Steve Statsinger

Here are the court’s three most recent per curiams.

In United States v. Deida, No. 11-2272-cr (2d Cir. June 20, 2012) (Winter, McLaughlin, Chin, CJJ) (per curiam), the court affirmed a life sentence under the federal “three strikes” statute, 18 U.S.C. § 3559(c). The court rejected the defendant’s argument that the statute violates the principle of separation of powers, joining four other circuits. Even though the statute gives the executive branch the authority to determine the defendant’s sentence, the judiciary “does not possess exclusive control over sentencing matters.” Thus, § 3559(c) does not unconstitutionally delegate a judicial power to the executive branch. The court also rejected the argument that the defendant was entitled to a jury trial on the sentencing enhancement, adhering to the holdings of Apprendi and Almendariz-Torres that recidivism-based sentencing enhancements are not elements of the offense that need to be found by a jury.

In United …

There has been a recent flurry of interesting summary orders. Enjoy!

United States v. Wilke, No. 11-1122-cr (2d Cir. May 31, 2012), contains an interesting discussion of the double jeopardy implications of being convicted of both tghe receipt of and the possession of the same images of child pornography. The court, which has never decided the issue, notes that there “may be substantial support for such a proposition,” and that it might even rise to the level of plain error. Here, however, there was no plain error since there was a “clear possibility” that Wilke was convicted of different conduct for each count. Interestingly, the court also rejected the government’s claim that the imposition of concurrent sentences on two such counts would undercut the prejudice prong of the plain error analysis, calling the claim “problematic.”

United States v. Pena Soltren, No. 11-256-cr (2d Cir. May 31, 2012), examines an “old-law” sentence.” …