Author Archive | Steve Statsinger

United States v. Habbas, No. 05-6142-cr (2d Cir. May 30, 2008) (Leval, Sack, CJJ, Garaufis, DJ)

This confusing opinion attempts to sort through the defendant’s claim that the government breached a plea agreement. But because of the imprecise way it is written, it is hard to know what really happened.

Defendant Rahman pled guilty to obstruction of justice in connection with his effort to frame someone named Abdel-Wahed by falsely reporting that Abdel-Wahed had assaulted a third person, who had testified against one of Rahman’s associates. Rahman pled guilty and was sentenced to eight years in prison.

On appeal, he argued that the government violated the plea agreement by advocating for guidelines higher than those contained in the agreement. Specifically, the government agreed with the probation department’s assessment that Rahman merited a four-level role enhancement, even though the agreement did not contain that adjustment. In rejecting this claim, the appellate …

The court has only issued 2 published opinions in criminal cases in the past two weeks. But there has been a flurry of noteworthy summary orders. Here is the latest crop:

In United States v. Creary, No. 06-2233-cr (2d Cir. May 27, 2008), a document fraud case, the court vacated the sentence because the district judge did not make sufficient findings that the case involved 100 or more fraudulent documents.

United States v. Berrios, No. 05-6654-cr (2d Cir. May 27, 2008), sorted out a district court proceeding that can only be described as a train wreck. First, the court vacated one defendant’s sentence because the district judge did not give sufficient reasons for the sentence: it did not calculate the guideline range, mention § 3553(a), adopt the presentence report or address the history and character of the defendant. The circuit did not enforce the appellate waiver, because, during the plea, …

United States v. Rattoballi, No. 06-5881-cr (2d Cir. May 8, 2008). Rattoballi faced a guideline range of 27 to 33 months’ imprisonment but received a noncustodial sentence. The government appealed, and, in a published decision, the court vacated the sentence. This summary order affirms the 18-month prison sentence imposed on remand. The sentence was reasonable, and did not violate the parsimony clause.

In United States v. Ibarra, No. 06-0742-cr (2d Cir. May 7, 2008), the court held that the district court erred denying the “minor participant” reduction to a drug courier. The defendant “participated in only one of the conspiracy’s two drug hand-offs,” played “lesser role than anyone else involved in the conspiracy,” and his participation was limited to accompanying another defendant, “to whom he was clearly subordinate.”

In United States v. LaFlam, No. 07-0253-cr (2d Cir. May 5, 2008), the court held that a state conviction for cultivation of …

This batch of summary orders of interest wraps up April. Here we go:

In United States v. Moya, No. 05-2432-cr (2d Cir. April 30, 2008), the district court erred in imposing a 2-level aggravating role enhancement. Where the defendant is not a manager or supervisor, but there are five or more participants, the district court’s choice is between a 3-level enhancement or no enhancement at all. “Compromise outcomes” are not permitted.

In United States v. Dono, No. 07-5333-cr (2d Cir. April 23, 2008), the district court erred in setting bail for two alleged members of an organized crime family who were charged with a crime of violence. The defendants did not overcome the statutory presumption of dangerousness, and the bail condition ordering them to stay away from the victims and not associate with other crime family members did “not ensure that they will comply.”

United States v. Desroches, No. 06-3196-cr …